THE STATE OF WASHINGTON, Rеspondent, v. DARREN C. CREEKMORE, Appellant.
No. 20493-9-I
Division One
November 6, 1989
82 Wn. App. 852
WEBSTER, J.
As amended by order of the Court of Appeals January 16, 1990.
Seth R. Dawson, Prosecuting Attorney, and Paul Stern, Ken Cowsert, Seth Aaron Fine, and Kevin M. Korsmo, Deputies, for respondent.
[As amended by order of the Court of Appeals January 16, 1990.]
WEBSTER, J.—Darren Creekmore appeals his conviction of second degree felony murder, based on underlying felonies of second degree assault and second degree criminal mistreatment. Creekmore contends the felony murder rule should not apply to these felonies. He also argues that his 720-month sentence is “clearly excessive” under the Sentencing Reform Act of 1981 (SRA) and that it constitutes cruel and unusual punishment under the state and federal constitutions. We affirm.
FACTS
Creekmore kicked his 3-year-old son Eli in the stomach on the evening of September 26, 1986. Eli‘s bowel ruptured, and he died several hours later. The fatal assault culminated a history of child abuse.
For example, on May 1, 1986, a day-care worker noticed extensive welts and bruises on the back of Eli‘s legs and buttocks.
A: He had welts all over the back of his legs, both legs, a bruise behind his right knee. . . . [H]e had welts all over both buttocks and bruises. He had a bruise on his left forehead, on the inside of his right arm, and on his left elbow.
They were narrow and went across both buttocks and . . . both of the legs. They were red, and they had the white markings of breaking through the first layer of skin.
Q: Eli complain of having any pain?
A: Yes.
Another worker noticed these injuries as well as bruises around Eli‘s penis and along his testicles.
A: He had welts on his legs, and in his groin area it was bruised above his penis and along the sides of his penis and down along the testicles.
. . . .
They were welts, . . . and it looked like almost like a pinch where it was red on each side and white in the center.
. . . .
It was all black and blue above his groin area, and on each side of his testicles there were big black and blue marks also, bruises.
Q: Were you concerned about those injuries?
A: Yes.
I called CPS.
The workers asked Creekmore about Eli‘s injuries. Creekmore initially denied, but later he admitted inflicting them.
Q: Did he tell you how he hit him, what he hit him with?
A: Yes. He said he got a yardstick . . . .
. . . [and] that he whipped him.
Q: Did he show any remorse?
A: No.
Q: Did he show any concern towards Eli?
A: No.
Creekmore said Eli “deserved” the injuries, because Eli “deliberately defied” him by messing his pants. Creekmore explained to a friend in grisly detail how the injuries occurred and why he used a yardstick.
A: He told me that Eli had peed his pants in the morning and he had made him take off his pants and stand with his legs spread so he could take a ruler up and down the inside of his legs.
Q: Did he tell you why he hit him with the ruler?
A: He said that he wasn‘t supposed to hit him with his hands anymore because he was leaving hand prints, that he could use anything he could pick up, or he could kick him.
A week before Eli died, Creekmore made him eat a jalapeno pepper until Eli threw up. Creekmore hoped to “potty train” Eli in this way; he told Mary that when Eli pooped, it would burn him. Mary took Eli to a doctor who prescribed clear fluids and bland foods. Eli was ill for several days but he gradually got better. Mary suggested taking Eli to a doctor again, but Creekmore opposed the idea.
Mary explained the events of September 26, 1986, which led to Eli‘s death. Eli was eating dinner alone. Creekmore sat next to him, and Eli started to cry. Creekmore ordered Eli to go to his room, which Eli did, but he continued crying. Creekmore rushed into the bedroom. From the living room, Mary heard “a gasp and a thud.” When Creekmore came out of the bedroom, Mary asked him what he had done. Creekmore said, “Nothing.”
A few minutes later, Eli came out of his bedroom and told Mary he pooped his pants. Creekmore asked Eli, “Why did you poop your pants, boy?” Eli said, “Because you kicked me in the stomach.” Creekmore yelled, “That is not true, аnd if you want me to make it true, I‘ll make it true.” Creekmore then raised his foot as if to kick Eli. Creekmore was skilled in martial arts, and Mary knew this; she said, “No, don‘t kick him.” Creekmore told her to go back into the living room, where she heard the rest.
Creekmore told Eli to wash his pants in the toilet. Eli said he peed his pants, and Creekmore said he was getting a belt. Mary tried to stop him, but he told her to stay out of it. She heard him whip Eli several times. “Eli was crying, and Darren was asking Eli if he wanted some more, and then he would hit him some more.”
After a while, the noises stopped. Eli said he had to poop, so Creekmore told him to get on the toilet. Creekmore came
Eventually, a friend arrived. Mary then went to free Eli. She found him in the toilet with his butt in the water and his arms and legs hanging over the rim. He looked weak and limp. Eli had vomited on himself, so Mary took him out of the tоilet and cleaned him up. He had “stripes” across his bottom and a 2- by 3-inch red mark on the left side of his abdomen. Creekmore came into the bathroom, and Eli started to vomit some more. Mary told him they should take Eli to a doctor. Creekmore said, “No, he‘s just throwing up because he‘s mad.” Mary testified that Eli never threw up when he was mad.
Hoping to keep Creekmore away from Eli, Mary put Eli to bed and suggested that she, Creekmore, and their friend play a board game. While they were playing, Eli was moaning and vomiting. Mary checked on him several times and cleaned him up. At one point, Creekmore looked at her as if to say, “you better stay away from him.” Creekmore then went into Eli‘s bedroom and told him to shut up and go to sleep.
Mary went to bed at about 10:45 p.m. She could hear Eli moaning, but she felt it was hopeless to try to get him to a doctor because Creekmore would not allow it.
Creekmore‘s friend testified that Eli came into the living room while Mary was sleeping. Eli looked “really white,” and “he couldn‘t walk very well.” Creekmore‘s friend said Eli should go to a hospital, but Creekmore said he would take care of it. Creekmore put Eli on his lap momentarily. Eli was shaking and sniffling. Creekmore then told Eli to go back to bed.
Creekmore checked on Eli at about midnight. A few minutes later, Creekmore came out of Eli‘s room and said Eli was dead. Creekmore‘s friend told him how to administer CPR. He called an ambulance, woke up Mary, and returned to help Creekmore. Paramedics arrived promptly,
Mary rode in the ambulance to the hospital. Creekmore‘s friend ran there, as it was only 2 1/2 blocks away. Creekmore arrived 15 minutes later. They were told that Eli was dead. They returned to the Creekmore house and went to bed. Mary was crying. Creekmore told her to shut up and to go to sleep.
An autopsy revealed a ruptured bowel causеd by blunt trauma. The rupture caused an infection which led to septic shock and cardiac arrest. The force required to cause the rupture was more consistent with a kick than a punch.
One of Creekmore‘s friends testified that Creekmore had a powerful kick. Creekmore hurt this person in a sparring match and “whooped” three others “pretty good.” Creekmore‘s friend recalled a time when Creekmore kicked him in the arm and drew blood. He said it takes “pretty good control” to break the skin without breaking the bone as well.
FELONY MURDER
A person is guilty of second degree felony murder if he commits any felony (other than those supporting a conviction of first degree felony murder) and in the course and in furtherance thereof he causes the death of another.
Creekmore contends that felony murder based on criminal mistreatment is the same as manslaughter. Felony murder is a class A felony with a seriousness level of 12; manslaughter is a class B felony with a seriousness level of 9.
Our Supreme Court has repeatedly held that аssault will support a charge of second degree felony murder. See State v. Wanrow, supra; State v. Thompson, 88 Wn.2d 13, 558 P.2d 202, appeal dismissed, 434 U.S. 898 (1977); State v. Harris, 69 Wn.2d 928, 421 P.2d 662 (1966). In his brief, Creekmore “respectfully submits that these holdings are erroneous and urges this Court to adopt the merger doctrine adopted by every other state in the country.” However, this court may not reconsider decisions of our Supreme Court. See Hamilton v. Department of Labor & Indus., 111 Wn.2d 569, 571, 761 P.2d 618 (1988); State v. Gore, 101 Wn.2d 481, 487, 681 P.2d 227, 39 A.L.R.4th 975 (1984).
EXCEPTIONAL SENTENCE
The trial court sentenced Creekmore to 720 months, or 60 years. The standard range was 144 to 192 months, or 12 to 16 years. Creekmore‘s sentence is 5 times the lower end and 3.75 times the upper end of the standard range.
A trial court may impose a sentence outside the standard range if it finds, considering “the purpose” of the sentencing reform act, “that there are substantial and compelling reasons justifying an exceptional sentence.”
Appellate review is defined by
To reverse а sentence which is outside the sentence range, the reviewing court must find: (a) Either that the reasons supplied by the sentencing judge are not supported by the record . . . or that those reasons do not justify a sentence outside the standard range . . . ; or (b) that the sentence imposed was clearly excessive . . .
The Reasons Are Supported by the Record.
The trial court cited five reasons: (1) Eli‘s vulnerability, (2) multiple incidents of assault, (3) abuse of parental trust and responsibility, (4) no remorse, and (5) no mitigating factors. Creekmore concedes the first, third, and fifth reasons are supported by the record, but he says the second and fourth are not.
Regarding the second reason, multiple incidents, the trial court said:
You committed multiple crimes against him and I‘m referring, for the record, to the May incident when you beat him because you didn‘t like his bowel movement or lack thereof; on September 26, when you kicked him, when you beat him in the toilet, when you threw him in the toilet.
Regarding the fourth reason, lack of remorse, Creekmore contends the record does not permit effective appellate review, because the trial court did not identify “thosе aspects of [the] defendant‘s conduct to which [it was] referring.” State v. Payne, 45 Wn. App. 528, 531, 726 P.2d 997 (1986) (citing State v. Holland, 98 Wn.2d 507, 517, 656 P.2d 1056 (1983)). Payne and Holland are distinguishable because, here, the record is replete with evidence that Creekmore had no sympathy for Eli before or after his death. Eli came out of his bedroom and said he had “pooped” his pants; Creekmore asked why, and Eli responded, “Because you kicked me in the stomach.” Creekmore yelled, “That is not true, and if you want me to make it true, I‘ll make it true.” He then approached Eli
The trial court‘s reasons, far from being “clearly erroneous“, are supported by the record.
The Reasons Justify an Exceptional Sentence.
The first and second reasons are well-established aggravating factors. See
The third and fourth reasons are also well established. See State v. Fisher, at 426–27 (abuse of trust); State v. Harp, 43 Wn. App. 340, 342–43, 717 P.2d 282 (1986) (caretaker used position of trust to molest children); State v.
Creekmore argues that the third reason, abuse of trust, was “necessarily considered in computing the presumptive range for the offense.” Nordby, 106 Wn.2d at 518. Criminal mistreatment, he notes, presumes a breach of parental or custodial trust. However, second degree felony murder was sufficiently established by the assault which resulted in Eli‘s death. State v. Crutchfield, 53 Wn. App. 916, 922–23, 771 P.2d 746 (1989), which holds that one cannot use a relationship of trust to facilitate a crime of recklessness, is distinguishable, because Creekmore acted with knowledge. By convicting Creekmore of felony murder based on second degree assault, the jury specifically found that he knowingly inflicted grievous bodily harm. See
The fifth reason, no mitigating factors, is not an aggravating factor, any more than the absence of aggravating factors creates a mitigating circumstance. See Armstrong, 106 Wn.2d at 551. However, the trial court had ample justification to exceed the standard range, and the lack of mitigation was relevant to the length of the sentence ultimately imposed. Thus, the trial court‘s reference to “no mitigating factors” should be considered in the final inquiry, whether the sentence is “clearly excessive.”
The Sentence Is Not “Clearly Excessive“.
An exceptional sentence is “clearly excessive” only if no reasonable person would impose it. State v. Nelson, 108 Wn.2d 491, 504–05, 740 P.2d 835 (1987); State v. Pascal, 108 Wn.2d 125, 138–39, 736 P.2d 1065 (1987); State v. Armstrong, 106 Wn.2d 547, 550, 723 P.2d 1111 (1986);
Stated otherwise, the “clearly excessive” prong of appellate review under the sentencing reform act gives courts near plеnary discretion to affirm the length of an exceptional sentence, just as the trial court has all but unbridled discretion in setting the length of the sentence. This necessarily follows from the lack of a legislative definition of “clearly excessive” and from the abuse-of-discretion standard of review. See
Appellate court discretion to affirm under the “clearly excessive” prong is a legislative creation, not a judicial one. Oxborrow, at 529–31; Pascal, at 138–39. The Legislature can always limit that discretion if it desires to do so. Oxborrow, at 532. Until that time, the Legislature has delegated the decision to us.
No case of this court or of our Supreme Court has ever reversed an exceptional sentence because of its length. We see no basis for making this the first.
We recently upheld a 648-month sentence for first degree murder. State v. Harmon, 50 Wn. App. 755, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988). A longer sentence has been imposed for felony murder based on deliberate cruelty. See State v. Drummer, 54 Wn. App. 751, 775 P.2d 981 (1989) (660 months). Neither case involved the scourge of child abuse. Eli was a defenseless, 3-year-old child killed mercilessly by his own father. The killing, although less bloody and arguably less brutal than the murders in Harmon and Drummer, was every bit as cruel. Eli‘s suffering was more prolonged and perhaps more severe, and his helplessness was horrifying.
In State v. Oxborrow, supra, our Supreme Court upheld consecutive, maximum term sentences for theft, one for 5
In State v. Armstrong, supra, “a totally defenseless 10-month-old child” was twice injured by scalding. 106 Wn.2d at 550. The defendant, in contrast to Creekmore, drove his victim to a hospital for treatment. Armstrong, at 548. He pleaded guilty to second degree assault and received a 5-year sentence—five times the SRA standard range. Armstrong, at 549. On review, the court affirmed the sentence, based on the helplessness of the victim and the multiple assaults, although two other reasons were invalid. Armstrong, at 550–51. The court deferred to the trial court, which believed the crime “was not a routine second degree assault but rather a flagrant act of child abuse requiring severe punishment.” Armstrong, at 552. The court also noted that the sentence was only one-half the statutory maximum. Armstrong, at 552 n.1.
Here, Creekmore caused extended pain and suffering. He callously ignored that suffering, and the result was death. Eli was totally helpless; not even his mother could help him. He was at the mercy of a man, his own father, whom he could not please, and who rather than recognizing the limits of Eli‘s abilities, punished those shortcomings with a painful and merciless death. The trial court, having given the matter months of thought, said:
Mr. Creekmore, to me, the murder of a child, especially a helpless, defenseless child, is by my way of thinking the most heinous crime that can be committed. . . . I don‘t know if we can prevent child abuse, but we have to try. I do know that we cannot tolerate child abuse. A society that does not prevent and/or tolerates child abuse is a society that is not civilized and is а society that is destined, as it should be, not to survive.
Given the mental and physical pain endured by Eli, our desire not to discount that suffering, and the trial court‘s firsthand knowledge of the facts, we find no abuse of discretion. The statutory maximum is life imprisonment.
Creekmore contends the trial court erred by considering the possibility of earned early release. See
We are satisfied the court would have imposed the same sentence even if it had not considered earned early release. The trial court considered Creekmore‘s killing “the most heinous crime that can be committed.” The court also said:
I do impose an exceptional sentence, and that sentence is 60 years. . . . It is a sentence that I believe to be just under the circumstances of this case.
I started this sentence by saying, and I will conclude by saying, we must try to prevent child abuse. We cannot tolerate it. Under the facts of this case, I want to send a clear message to you and to others who may want to walk in your footsteps. It will not be tolerated in this court. . . . [A] sentence of 60 years I believe to be just under the circumstances . . .
We see no point in rеmanding when the trial court believes the sentence imposed is just and we are unwilling to find it “clearly excessive.”
Creekmore contends his 60-year sentence is tantamount to life imprisonment without possibility of parole, because
Creekmore notes that his sentence exceeds by about 15 years the top end of the standard range for a person convicted of first degree murder who has an offender score of 9 or more. See
Creekmore refers to a letter from the Sentencing Guidelines Commission which reveals that 11 exceptional sentences were imposed for second degree murder from 1985 through 1987. Creekmore‘s sentence was the highest of the 11 at 720 months. The lowest was 216 months, and the average, 361 months. In 7 of the 11 cases, the victims were vulnerable. During the same 3-year period, a total of 13 sentences for crimes other than aggravated first degree murder exceeded the upper end of the highest standard range, or 548 months.
Creekmore attempts to distinguish the 900-month sentence by implying that it involved multiple counts served consecutively. However, the letter from the Sentencing Guidelines Commission says it was given for concurrent convictions of first degree rape and first degreе kidnapping. The 900-month sentence contradicts Creekmore‘s claim that his sentence is more severe than any punishment meted out in this state for any crime other than aggravated first degree murder.
Creekmore contends the Legislature expressed an intent that his crime be punished within the standard range of homicide by abuse.
A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person.
Still, Eli‘s age would warrant an exceptional sentence under the new statute. See State v. Fisher, 108 Wn.2d at 423–24 (5 1/2-year-old victim; indecent liberties). Creekmore‘s criminal mistreatment, or abuse of trust, and his lack of remorse for Eli would also be aggravating factors
To deal with the problem of child abuse effectively, we have to deal with the criminal law, as we have done in this bill and provide for criminal sanctions to those people who would so far exceed the boundaries of civilized behavior as to do this kind of harm to children. . . . [A]nyone who engаges in this kind of practice of abuse is going to be subject to these kinds of penalties and as Senator Halsan said, ‘We made this as serious a crime as we can make it.’
(Italics ours.) Senate Journal, 50th Legislature (1987), at 157. Senator Deccio added, “We may never solve the problem of child abuse, but we can certainly, . . . through penalties like this, at least make a dent in probably one of the greatest social problems that we‘ve got in the United States today.” Senate Journal, at 158. The Legislature clearly intended maximum penalties for child abusers; it would twist their intent by interpreting their actions in favor of Creekmore.
We note that the Legislature did not increase the maximum punishment for child abusers by enacting the crime of homicide by abuse,
The new law would be noticeable in a case like this if Creekmore‘s crime were moved to a seriousness level of 14. See
CRUEL AND UNUSUAL PUNISHMENT
Creekmore‘s last challenge to his sentence is based on the constitutional ban of cruel and unusual punishment.
Only punishment which is “grossly disproportionate to the gravity of the offense” violates the state and federal constitutional guaranty. State v. Bowen, 51 Wn. App. 42, 47, 751 P.2d 1226 (1988). To be “grossly disproportionate” punishment must be “clearly arbitrary and shocking to the sense of justice.” State v. Smith, 93 Wn.2d at 344–45. For example, in Solem v. Helm, 463 U.S. 277, 77 L. Ed. 2d 637, 103 S. Ct. 3001 (1983), the Supreme Court reversed a sentence of life imprisonment without possibility of parole for a nonviolent habitual offender convicted of passing a bad check for $100. Referring to Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S. Ct. 3368 (1982), in which the Court held that an accomplice to felony murder could not be sentenced to death without a showing that he killed or intended to kill, the Court in Solem said, “clearly no sentence of imprisonment would be disproportionate for Enmund‘s crime.” 463 U.S. at 290 n.15. By this assessment, any sentence short of death would be constitutionally
Proportionality analysis under the Eighth Amendment would yield the same result. Before a sentence can be declared cruel and unusual, it must be “significantly disproportionate” in view of three objective criteria:
(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictiоns.
Solem v. Helm, 463 U.S. at 292. The first step focuses on the harm caused and the culpability of the offender. Solem, at 292–93. Here, the harm caused was the death of Eli, whose helplessness and suffering, coupled with Creekmore‘s knowing infliction of grievous bodily harm and indifference to it, establish a high degree of culpability. The second prong of the analysis depends on maximum penalties for the same conduct in the same jurisdiction. Solem, at 298; State v. Bowen, 51 Wn. App. at 48. In Washington, if Creekmore had raped Eli, rather than killed him, he could have received life imprisonment. Former
Creеkmore erroneously relies on a sampling of cases from other jurisdictions in which shorter sentences were imposed. The sampling is irrelevant because it disregards the permissible sentence in those jurisdictions, and because it is not necessarily representative. He does not contend the sampling is randomly selected or that it is statistically significant.
Creekmore argues that eligibility for parole is critical to an Eighth Amendment analysis. However the most that can be said is that parole “may complicate the comparison, depending upon the time and conditions of its availability.” Solem v. Helm, 463 U.S. at 294 n.19. In Solem v. Helm, unavailability of parole for life was significant because “Helm‘s crime was ‘one of the most passive felonies a person could commit.‘” Solem, at 296 (quoting State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting)). Here, in contrast, Creekmore‘s crime was violent and heinous. “[C]learly no sentence of imprisonment would be [unconstitutionally] disproportionate” for felony murder. Solem v. Helm, 463 U.S. at 290 n.15 (referring to Enmund v. Florida, supra).
CONCLUSION
Creekmore was properly convicted; any felony will support a charge for second degree felony murder. The trial court had substantial and compelling reasons to impose a 60-year sentence. The sentence is not clearly excessive, and it is certainly not cruel and unusual punishment.
We affirm.
GROSSE, A.C.J., concurs.
Because of the importance of the standard of review of exceptional sentences, I briefly state my objections to the current standard that reviews the duration of an exceptional sentence only for an abuse of discretion. By definition, an abuse of discretion standard permits a wide range of sentencing. That width is illustrated by this case. The maximum sentence within the standard range would be 192 months. A sentence within the standard range would be nonreviewable. The actual sentence imposed, and now rendered nonreviewable in the majority opinion, is 720 months. The vast range of discretion is candidly acknowledged by the majority, at 864:
Stated otherwise, the “clearly excessive” prong of appellate review under the sentencing reform act gives courts near plenary discretion to affirm the length of an exceptional sentence,
just as the trial court has all but unbridled discretion in setting the length of the sentence.
As Justice Goodloe prophetically observed, the practical effect of an abuse of discretion standard is to guarantee that an appellate court will rarely, if ever, overturn an exceptional sentence because of its length.5 The majority places the responsibility for this essentially uncontrolled discretion upon the Legislature. “This necessarily follows from the lack of a legislative definition of ‘clearly excessive’ and from the abuse-of-discretion standard of review.” Majority, at 864.
I find the term “clearly excessive” a fair and reasonable standard. No formula will dictate the results. It is a normal and essential function of appellate courts to give specific content to broad general terms such as “due process of law.” The United States Supreme Court deals comfortably with the broad general standard of “cruel and unusual punishment“.6 So too have the Washington courts. In State v. Fain,7 the Supreme Court held that a sentence of life imprisonment was cruel and unusual when imposed upon a person found to be a habitual criminal based on three convictions for minor offenses not involving offenses to persons or property. In State v. Ross,8 this court upheld a life sentence imposed on a person found to be a habitual offender based on seven convictions for offenses involving severe penalties.
This is analogous to the type of review that would be involved in deciding that in a given case, a sentence of 700 months is “clearly excessive” while a sentence of 600 months is not. In my view, it is the courts’ responsibility to
It is unfortunate that this formula has been adopted, as it focuses on the judge‘s mental state instead of the reasons for his decision. An experienced and reasonable trial judge does not suddenly become “unreasonable” on a particular day. He may make an erroneous or unreasonable decision, just as a normally prudent driver can be negligent and cause an aсcident. The true question is always: Do the facts and reasons given justify the result in question?
To emphasize the fallacy of this test for abuse of discretion, let me pose an unlikely hypothetical. A motion for reconsideration is made on the basis that the judge abused his discretion. In opposition to the motion, the affidavits of two recently retired superior court judges are filed, each one stating he has reviewed the facts and circumstances and he would make the same decision. The judge adheres to his decision and the matter is appealed. The Court of Appeals would be hard pressed to say that no reasonable judge would make such a decision in the face of the affidavits. But its responsibility for review does not evaporate. It retains the responsibility and authority to determine
Appendix 1 lists a number of reasons approved by appellаte courts as justifying an exceptional sentence. Appendix 2 lists all reasons used by trial courts to justify an exceptional sentence, whether approved or not. The list of reasons, already long, continues to grow. By itself, this list of reasons is not out of harmony with the SRA. However, in conjunction with the absence of any appellate control over the duration of sentences, it becomes so. The majority finds no case reversing a sentence as clearly excessive because of duration. Majority, at 864. It accepts this with equanimity. To me it suggests that the appellate courts have effectively read “clearly excessive” out of the SRA.
Discretion in criminal sentences is a function of the number of reasons approved as justifying an exceptional sentence as one variable, and the approved durations of exceptional sentences as the other variable. With no control of duration, the total amount of discretion increases as new reasons are approved. The present standard for review of duration and the presently approved reasons together generate excessive individual discretion. The purpose of the SRA was to provide structure to the trial court‘s exercise of discretion, to promote uniformity in sentencing and, ultimately, to build a common law of sentencing.11 By requiring that punishment be “commensurate with the punishment imposed on others committing similar offenses“,12 the SRA promotes the concept of proportionality. It encourages respect for law by requiring “punishment which is just“.13 Under the current policy, once the threshold of an acceptable reason justifying an exceptional sentence is passed, the trial court is permitted “unbridled
In an ideal judicial world, the same defendant would receive the same sentence regardless of which of the 156 superior court judges presided. While that ideal cannot be achieved, the SRA is an effort to approach such ideal by structuring discretion, and should be interpreted to that effect. The abuse of discretion standard as applied to duration of exceptional sentences does nothing to realize this goal. Rather, it ensures that in the area of exceptional sentences, the judge before whom the defendant appears will make an enormous difference.
In my view, it is the responsibility of the appellate court to decide whether a sentence is “clearly excessive” by exercising its own judgment as to the relationship between the reasons given and the duration imposed; not by reference to what some hypothetical reasonable judge would not do. If a sentence of 20 years is imposed and the reviewing court finds the sentence to be “clearly excessive“, it should say that 20 years is clearly excessive and that 15 years is appropriate in light of the reasons found by the trial court. This may seem strange, but once the duration of a sentence is regarded as a legal conclusion to be drawn from the reasons given, it will be recognized to be consistent with the appellate process.14
I find it hard to understand how a court could ever recognize a sentence as being clearly excessive if it does not have a standard of what is an appropriate sentence. Such a standard, if unexpressed, should be made explicit. An appellate court‘s announcement that a sentence of 20 years is not in its judgment “clearly excessive” furnishes much greater guidance to trial courts than simply holding that 20 years is not an abuse of discretion. Indeed, approving a sentence of 20 years using an abuse of discretion standard
Another problem exists. If an appellate court does find the duration of a sentence to be an abuse of discretion, how should the matter be handled? Is the case remanded with no specific direction as to the appropriate sentence? What is the trial judge to do? Except in the unlikely case where the appellate opinion has presented a genuinely new consideration, the trial court presumably remains of the same opinion. Surely the judge exercised his best judgment at the time he determined the original sentence. He now must guess how much to reduce the sentence in order to have it approved on a new appeal. No “correct” sentence exists. The trial judge must ask: Is a reduction of 10 percent what the appellate court had in mind? Or perhaps 20 percent? This indirect approach to establishing the appropriate sentence is not a satisfactory method of implementing the SRA.
A determination by three appellate judges as to the appropriate duration of an exceptional sentence represents the common agreement of three minds. Such sentences will presumably cluster around a narrower range than those of individual trial judges. Appellate judges are somewhat removed from the immediate impact of the trial and the community in which it took place. Such detachment should help ensure fairness and proportionality. In due course, there will be examples of analogous facts and durations to help structure the results. There will never be one demonstrably correct sentence. It will never be possible to say that 20 years is right and 21 years is wrong. The fact that it is a question of range rather than an exact number does not alter the аppellate court‘s responsibility to independently determine a result appropriate to the reasons given by the trial judge.
Norms and patterns will develop. A trial judge will be able to compare the unique facts of his case with the facts
APPENDIX 1
REASONS FOR AN EXCEPTIONAL SENTENCE APPROVED ON APPEAL
*Reasons specifically listed as illustrative in
- State v. Altum, 47 Wn. App. 495, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987)
First Degree Rape, Second Degree Robbery
Standard Sentence Range: 98-130 months
Imposed Sentence: 480 months
Reasons Given: A. Excessive violence, brutality
B. Victim particularly vulnerable*
C. Repeated acts of forcible intercourse - State v. Armstrong, 106 Wn.2d 547, 723 P.2d 1111 (1986)
Second Degree Assault
Standard Sentence Range: 12-14 months
Imposed Sentence: 60 months
Reasons Given: A. Victim particularly vulnerable*
B. Multiple injuries - State v. Bernhard, 108 Wn.2d 527, 741 P.2d 1 (1987)
Second Degree Burglary
Standard Sentence Range: 4-12 months
Imposed Sentence: 4 months prison, 12 months drug rehabilitation
Reasons Given: A. Crimes resulted from addiction
B. Prior jail time did not affect behavior
C. Further incarceration would not affect behavior - State v. Butler, 53 Wn. App. 214, 766 P.2d 505, review denied, 112 Wn.2d 1014 (1989)
Second Degree Assault
Standard Sentence Range: 13-17 months
Imposed Sentence: 48 months
Reasons Given: A. Victim particularly vulnerable*
B. Multiple incidents upon the same victim
C. Injuries inflicted were very severe
D. Injuries could have been avoided - State v. Clinton, 48 Wn. App. 671, 741 P.2d 52 (1987)
First Degree Rape, First Degree Burglary
Standard Sentence Range: 67-89 months for first rape; 51-68 months for second and third rape
Imposed Sentence: 108 months for each rape consecutive, burglary sentenced concurrently
Reasons Given: A. Victim particularly vulnerable*
B. Deliberate cruelty*
C. Excessive brutality - State v. Davis, 47 Wn. App. 91, 734 P.2d 500, review denied, 108 Wn.2d 1029 (1987)
First Degree Assault, First Degree Robbery
Defendant was sentenced “outside the presumptive range”
Reasons Given: A. Deliberate cruelty*
B. Victim particularly vulnerable*
C. Defendant used a position of trust to facilitate the crime - State v. Davis, 53 Wn. App. 306, 766 P.2d 1120, review denied, 112 Wn.2d 1015 (1989)
Vehicular Homicide
Standard Sentence Range: 21-27 months
Imposed Sentence: 48 months
Reasons Given: A. Three other persons were injured
B. Defendant demonstrated disregard for the danger his chemical abuse causes
C. Failed rehabilitation
D. Danger to the public State v. Dennis, 45 Wn. App. 893, 728 P.2d 1075 (1986), review denied, 108 Wn.2d 1008 (1987)
First Degree Kidnapping, First Degree Rape
Standard Sentence Range: 67-89 months
Imposed Sentence: 180 months
Reasons Given: A. Deliberate cruelty*
B. Purposeful, thought-out course of conduct- State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987)
Attempted Murder
Standard Sentence Range: 203.25-270.25 months
Imposed Sentence: 480 months
Reasons Given: A. Planning, sophistication of the crime
B. Deliberate cruelty*
C. Sentencing range does not provide adequate protection for society* - State v. Edwards, 53 Wn. App. 907, 771 P.2d 755, review denied, 113 Wn.2d 1002 (1989)
First Degree Rape (3 counts)
Standard Sentence Range: 72-96 months
Imposed Sentence: 156 months
Reasons Given: A. Nonamenability to treatment
B. Multiple incidents of abuse
C. Victims particularly vulnerable* - State v. Falling, 50 Wn. App. 47, 747 P.2d 1119 (1987)
First Degree Rape
Standard Sentence Range: 62-82 months
Imposed Sentence: 120 months
Reasons Given: A. Rape occurred at victim‘s residence
B. Defendant used a knife during a
C. Prolonged ordeal of sexual abuse
D. Continuing series of threats
E. Deliberate cruelty*
F. No remorse - State v. Fisher, 108 Wn.2d 419, 739 P.2d 683 (1987)
Indecent Liberties (2 counts)
Standard Sentence Range: 15-20 months (per count)
Imposed Sentence: 24 months (per count)
Reasons Given: A. Victim particularly vulnerable*
B. Multiple incidents
C. Position of trust State v. Garnier, 52 Wn. App. 657, 763 P.2d 209 (1988), review denied, 112 Wn.2d 1004 (1989)
Second Degree Burglary, Attempted Second Degree Burglary
Standard Sentence Range: 43-57 months
Imposed Sentence: 108 months
Reasons Given: A. Multiple victims
B. High degree of sophistication
C. Unusually high offender‘s score- In re George, 52 Wn. App. 135, 758 P.2d 13 (1988)
Indecent Liberties, Second Degree Statutory Rape, Incest
Standard Sentence Range: 68-88 months
Imposed Sentence: 211 months
Reasons Given: A. Multiple incidents with each victim
B. Crimes were predatory and violent
C. Defendant not amenable to treatment - State v. Gunther, 45 Wn. App. 755, 727 P.2d 258 (1986), review denied, 108 Wn.2d 1013 (1987)
Delivering Cocaine
Standard Sentence Range: 12-14 months
Imposed Sentence: 24 months
Reasons Given: A. Quantity larger than for personal use*
B. Defendant possessed a firearm - State v. Handley, 54 Wn. App. 377, 773 P.2d 879 (1989)
Second Degree Possession of Stolen Property, First Degree Rendering Criminal Assistance, First Degree Conspiracy To Commit Robbery
Standard Sentence Range: 2-5 months, 13-17 months, 30.75-40.50 months
Imposed Sentence: 81 months
Reasons Given: A. Victim particularly vulnerable*
B. Defendant used a position of trust to facilitate the crime
C. Defendant knew there was a high probability of injury to the victim - State v. Harmon, 50 Wn. App. 755, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988)
First Degree Murder
Standard Sentence Range: 250-333 months
Imposed Sentence: 648 months
Reasons Given: A. Deliberate cruelty*
B. Multiple injuries State v. Hernandez, 48 Wn. App. 751, 740 P.2d 374, review denied, 109 Wn.2d 1020 (1987)
First Degree Rape, First Degree Robbery
Standard Sentence Range: 86-106 months
Imposed Sentence: 159 months
Reasons Given: A. Deliberate cruelty*
B. Defendant invaded zone of privacy- State v. Hernandez, 54 Wn. App. 323, 773 P.2d 857 (1989)
First Degree Murder, First Degree Assault
Standard Sentence Range: Concurrent
Imposed Sentence: Consecutive (474 months)
Reasons Given: A. Deliberate and premeditated
B. Victims particularly vulnerable*
C. Presumptive sentence clearly too lenient* - State v. Holyoak, 49 Wn. App. 691, 745 P.2d 515 (1987), review denied, 110 Wn.2d 1007 (1988)
First Degree Assault
Standard Sentence Range: 93-123 months
Imposed Sentence: 246 months
Reasons Given: A. Victim particularly vulnerable*
B. Exceptional cruelty*
C. Future dangerousness - State v. McAlpin, 108 Wn.2d 458, 740 P.2d 824 (1987)
First Degree Robbery
Standard Sentence Range: 46-61 months
Imposed Sentence: 90 months
Reasons Given: A. Criminal history
B. Danger to the community
C. Sophisticated criminal - State v. Mejia, 111 Wn.2d 892, 766 P.2d 454 (1989)
Possession of Cocaine With Intent To Deliver
Standard Sentence Range: 12-14 months
Imposed Sentence: 30 months
Reasons Given: A. The largest seizure of сocaine in Yakima County history* - State v. Nordby, 106 Wn.2d 514, 723 P.2d 1117 (1986)
Vehicular Assault
Standard Sentence Range: 6-12 months
Imposed Sentence: 16 months
Reasons Given: A. Victim particularly vulnerable*
B. Intention to commit crime
C. Seriousness of victim‘s injuries State v. Olive, 47 Wn. App. 147, 734 P.2d 36, review denied, 109 Wn.2d 1017 (1987)
Unlawful Imprisonment
Standard Sentence Range: 3-8 months
Imposed Sentence: 14 months
Reasons Given: A. Victim particularly vulnerable*
B. Prior sexual offenses
C. Need for confined treatment
D. Threat to others- State v. Oxborrow, 106 Wn.2d 525, 723 P.2d 1123 (1986)
First Degree Theft, Violation of a Cease and Desist Order
Standard Sentence Range: 0-3 months, 0-12 months
Imposed Sentence: 180 months
Reasons Given: A. Major economic offense and
B. Involved multiple victims*
C. Monetary loss was greater than typical*
D. High degree of sophistication*
E. Defendant used a position of trust to facilitate the crime* - State v. Payne, 45 Wn. App. 528, 726 P.2d 997 (1986)
Second Degree Assault
Standard Sentence Range: 3-9 months
Imposed Sentence: 60 months
Reasons Given: A. Defendant forced victim to perform sexual acts
B. Victim particularly vulnerable*
C. Deliberate cruelty*
D. Risk to reoffend - State v. Ratliff, 46 Wn. App. 325, 730 P.2d 716 (1986), review denied, 108 Wn.2d 1002 (1987)
Second Degree Malicious Mischief
Standard Sentence Range: 0-3 months
Imposed Sentence: 6 months
Reasons Given: A. Deliberate maliciousness toward police
B. Pattern of similar convictions
C. Standard range not commensurate with the seriousness of the crime* - State v. Ratliff, 46 Wn. App. 466, 731 P.2d 1114 (1987)
Intimidating a Witness
Standard Sentence Range: 15-20 months
Imposed Sentence: 40 months
Reasons Given: A. Deliberate cruelty*
B. Invasion of the zone of privacy
C. Intention to cause mental anguish - In re Rolston, 46 Wn. App. 622, 732 P.2d 166 (1987)
Indecent Liberties
Standard Sentence Range: 12-14 months
Imposed Sentence: 20 months
Reasons Given: A. Victim particularly vulnerable*
B. Flagrant probation violations
C. Failure at rehabilitation
D. Lack of appreciation for damage caused
E. Danger to the community - State v. Shephard, 53 Wn. App. 194, 766 P.2d 467 (1988)
Indecent Liberties
Standard Sentence Range: 12-14 months
Imposed Sentence: 63 months (includes probation violation)
Reasons Given: A. Victim particularly vulnerable*
B. Sexual deviancy has not been cured by prior treatment
C. Danger to the community - State v. Smith, 49 Wn. App. 596, 744 P.2d 1096 (1987), review denied, 110 Wn.2d 1007 (1988)
Second Degree Possession of Stolen Property
Standard Sentence Range: 0-2 months
Imposed Sentence: 3 months
Reasons Given: A. First-time offender provision - State v. Stalker, 42 Wn. App. 1, 707 P.2d 1371 (1985), review denied, 107 Wn.2d 1018 (1986)
Attempting To Sell Marijuana
Standard Sentence Range: 1-3 months
Imposed Sentence: 12 months
Reasons Given: A. Major drug transaction involving a large area*
B. Amount of marijuana substantially more than necessary for personal use* - State v. Taatjes, 43 Wn. App. 109, 715 P.2d 1152, review denied, 105 Wn.2d 1020 (1986)
Manufacturing a Controlled Substance
Standard Sentence Range: 6-12 months
Imposed Sentence: 24 months
Reasons Given: A. Sophisticated drug enterprise*
B. Larger quantities than necessary for personal use*
C. Significant status in drug distribution system*
D. Prior history of drug violations* - State v. Tunnel, 51 Wn. App. 274, 753 P.2d 543, review denied, 110 Wn.2d 1036 (1988)
Statutory Rape, Indecent Liberties
Standard Sentence Range: 88-116 months
Imposed Sentence: 264 months
Reasons Given: A. Continuing pattern of conduct*
B. Children were seriously impacted by defendant‘s conduct
C. Multiple incidents, multiple victims*
D. Victims particularly vulnerable*
E. Defendant refused to acknowledge the severity of the offense - State v. Weaver, 46 Wn. App. 35, 729 P.2d 64 (1986), review denied, 107 Wn.2d 1031 (1987)
Vehicular Assault
Standard Sentence Range: 3-9 months
Imposed Sentence: 30 months
Reasons Given: A. History of alcohol abuse
B. Disdain for rehabilitation
C. Driving without insurance
D. Driving while intoxicated - State v. Wood, 42 Wn. App. 78, 709 P.2d 1209 (1985), review denied, 105 Wn.2d 1010 (1986)
Indecent Liberties
Standard Sentence Range: 15-20 months
Imposed Sentence: 30 months
Reasons Given: A. Defendant‘s age
B. Victim particularly vulnerable*
C. Prior conviction for incest
D. Defendant not amenable to treatment - State v. Woody, 48 Wn. App. 772, 742 P.2d 133 (1987), review denied, 110 Wn.2d 1006 (1988)
Indecent Liberties
Standard Sentence Range: 15-20 months
Imposed Sentence: 120 months
Reasons Given: A. Age of victim
B. Knowledge of consequences to victim
C. Future dangerousness
APPENDIX 2
REASONS GIVEN BY TRIAL COURTS FOR AN EXCEPTIONAL SENTENCE
*Reasons specifically listed as illustrative in
| REASON | Number of Times Cited |
|---|---|
| Vulnerable victim* | 63 |
| Seriousness of the offense | 56 |
| Crime was deliberately cruel* | 53 |
| Multiple victims or incidents per victim* | 51 |
| Defendant was in a position of trust* | 44 |
| Defendant used sophisticated/well-planned methods* | 40 |
| Defendant is a threat to the community | 23 |
| Monetary loss greater than typical* | 21 |
| Injuries greater than necessary for the crime | 20 |
| Multiple offense policy would give lenient sentence* | 20 |
| Defendant agreed to prison sentence instead of jail | 17 |
| Factors in criminal record | 16 |
| Drugs sold in quantities too large for personal use* | 14 |
| Drugs manufactured to be used by others* | 7 |
| Defendant has high position in drug hierarchy* | 7 |
| Criminal history score greater than 9 points | 6 |
| Defendant showed no remorse | 6 |
| Defendant violated zone of privacy | 4 |
| Greater treatment available in prison | 4 |
| Sentence will promote respect for the law | 4 |
| Continuing criminal activity after arrest or while on previous probation or parole | 4 |
| Defendant is not amenable to available treatment | 2 |
| Drugs sold at least 3 times* | 2 |
| Weapon used for drug crime | 2 |
| No resources in the community | 2 |
| Other | 46 |
| Total | 534 |
After modification, further reconsideration denied January 16, 1990.
Review denied at 114 Wn.2d 1020 (1990).
[No. 21722-4-I. Division One. November 6, 1989.]
THE STATE OF WASHINGTON, Respondent, v. LAWRENCE LEWIS THOMPSON, Appellant.