82 Wash. App. 130 | Wash. Ct. App. | 1996
Larry Parker appeals his exceptional sentence for first degree rape of a child in violation of RCW 9A.44.073 and first degree child molestation in violation of RCW 9A.44.083. He contends the trial court miscalculated both the seriousness level of his crimes and his offender score by calculating his standard ranges based on statutory amendments to the Sentencing Reform Act of 1981 (SRA) that became effective after the beginning of the charging period. He also argues that because it is not clear whether the jury relied upon incidents that occurred before or after the amendments became effective, he may have received a more severe sentence for his crimes than was authorized at the time he committed them. We hold that, where the trial court has not used the standard range as a basis for deciding the length of the exceptional sentence, the length is not excessive and the decision to impose an exceptional sentence is justified by the reasons
FACTS
On September 1, 1993, the State charged Parker with one count of first degree rape and two counts of first degree child molestation based on allegations of ongoing sexual abuse of three of D.W.’s children between 1987 and 1991. D.W. has four children: M, J, K and N. When D.W. met Parker in 1989, she and her children were living in a house in Skagit County. In the summer of 1989, they moved to a shelter in Mount Vernon for about a month and then moved to a house in Burlington. Parker spent the night at these places on a regular basis and often watched D.W.’s children for her. In July 1990, D.W. and her children moved into Parker’s house outside of Sedro Woolley. They lived with him until May 1991. The State produced evidence at trial that Parker began sexually molesting M, J and K early in his relationship with their mother.
The first degree rape of a child charge involved M (count 1) and the first degree child molestation charges involved both K (count 2) and J (count 3). The trial court instructed the jury that to find Parker guilty of these crimes, it must find that he committed these acts between 1987 and 1991. The trial court gave a "multiple acts” instruction directing the jury that, to convict Parker, it did not need to "find all of the acts have been proven, but that it [was] necessary that the jury unanimously agree that the same underlying criminal act has been proved.” The State did not elect which incidents it was relying on to prove the charges and argued to the jury that it could convict based on any of the incidents in the charging period. By general verdict, the jury found Parker guilty of counts 1 and 2. It did not reach a verdict on count 3.
At sentencing, the State presented a presentence investigation report (PSI) listing Parker’s offender score as
DISCUSSION
The State charged Parker with ongoing acts of sexual abuse between 1987 and 1991. In 1990, the Legislature enacted several amendments to the SRA that increased the seriousness level of Parker’s crimes and also increased his offender score. Those amendments became effective on July 1, 1990. Parker contends the trial court miscalculated both the seriousness level of his crime and his offender score because it improperly relied on the 1990 amendments even though the State introduced evidence of acts occurring before the effective date of the amendment upon which the jury could have based its verdict. He contends that imposing a more severe sentence under a law that was not in effect when the crimes may have been committed violates the prohibition against ex post facto laws.
Parker relies on State v. Gurrola, 69 Wn. App. 152, 848 P.2d 199, review denied 121 Wn.2d 1032 (1993), and State v. Brown, 55 Wn. App. 738, 780 P.2d 880 (1989), review denied, 114 Wn.2d 1014 (1990), to support his argument.
In Brown, the defendant was convicted of indecent liberties and statutory rape. The State charged Brown with ongoing criminal activity, some of which pre-dated the effective date of the SRA. As in this case, the jury returned a general verdict. On appeal, Brown challenged his SRA sentence, contending that it violated ex post facto prohibitions because the jury may have convicted him based on acts occurring before the effective date of the Act. Division Two agreed that Brown could not properly be sentenced under the SRA for conduct occurring before its effective date. The State urged the court to uphold the sentences because the jury could have found that all the acts occurred after that date. The court rejected this argument, noting that although most of the evidence supported the State’s argument, there was no way to isolate the particular act the jury relied upon. 55 Wn. App. at 750.
Although it assumed that the jury relied on pre-SRA conduct, the court rejected Brown’s ex post facto argument. It noted that a change in the law does not violate
[N]o greater punishment was imposed by the SRA than would have been the case had [the] defendant been sentenced under the indeterminate sentencing system [because h]ad he been sentenced under the indeterminate scheme, his minimum term for pre-SRA crimes would have been fixed by the independent sentencing review board [and] that decision necessarily would have been made by application of SRA standards.
Parker also relies on State v. Barberio, 66 Wn. App. 902, 833 P.2d 459 (1992), aff’d, 121 Wn.2d 48, 846 P.2d 519 (1993). Barberio had been convicted of one count each of second and third degree rape for which the court imposed an exceptional sentence. This court reversed his conviction for third degree rape.
In State v. Altum, 47 Wn. App. 495, 735 P.2d 1356, review denied, 108 Wn.2d 1024 (1987), the appellants claimed that the trial court erred in imposing exceptional sentences because it incorrectly calculated their criminal histories by counting their current convictions separately. Division Two held that
notwithstanding the fact that a trial judge is mistaken or ill informed as to the applicable presumptive sentence, an exceptional sentence is not automatically voided. The central inquiry must always be: do the reasons given by the trial judge justify the exceptional sentence and, if so, is the exceptional sentence clearly excessive when it is viewed in relation to the correct presumptive sentence.
47 Wn. App. at 500. See also State v. Hernandez, 48 Wn. App. 751, 740 P.2d 374 (citing Altum and declining to determine whether the trial court had miscalculated the standard range sentence because it was affirming the exceptional sentence), review denied, 109 Wn.2d 1020 (1987). The Altum court noted that in State v. Green, 46 Wn. App. 92, 730 P.2d 1350 (1986), reversed on other grounds sub nom. State v. Dunaway, 109 Wn.2d 207, 743 P.2d 1237, 749 P.2d 160 (1987), this court, in a similar situation, remanded because it was unable to determine whether the trial court depended on the incorrectly-determined offender score in imposing its exceptional sentence. Altum distinguished Green because the exceptional sentences before it were not "determined simply as a multiple of the standard range sentence.” 47 Wn. App. at 501 n.2.
As this review of the cases demonstrates, courts
We conclude that the Altum court’s approach is more appropriate in light of the Supreme Court’s recent opinion in State v. Ritchie, 126 Wn.2d 388, 392, 894 P.2d 1308 (1995). After Ritchie, it is clear that our review of the length of an exceptional sentence is limited by RCW 9.94A.210(4), which mandates that a sentence outside the standard range may be reversed only if the trial court’s reasons do not justify it or the sentence is clearly excessive.
That being said, however, we hasten to point out that we believe there is an exception to that rule where the trial court calculates the length of the exceptional sentence based on a faulty standard range. Thus, we disagree with Altum to the extent it can be read as holding that a miscalculated standard range can never be the basis for reviewing an exceptional sentence so long as the trial court’s reasons for imposing the sentence are justified. In our view, where a trial court clearly bases an exceptional sentence on a miscalculated standard range, for example, when it merely doubles or triples the top of the standard range, and it is not clear from the record that it would impose the same sentence even if it were aware of the proper standard range, the case would probably have to be remanded. In those circumstances, we would normally not be able to tell whether the trial court would impose the same sentence if it were aware of the error. Accord Barberio, 66 Wn. App. at 907.
We do not need to remand in this case because it is clear that the trial court did not base its sentence on a multiple of the miscalculated standard range. Parker argues that the trial court relied on the miscalculated offender score as a departure point for the exceptional sentence because, according to him, it simply sentenced him to the top end of the standard range for each offense and ran the sentences consecutively. We take issue with Parker’s math. The top end of the miscalculated standard range was 136 months for count 1 and 89 months for count 2. Had the trial court simply added the two, it would have imposed a sentence of 225 months, the sentence recommended by the State. Instead, it imposed a sentence of 132 months for
The trial court based Parker’s exceptional sentence on the following aggravating circumstances: the long term pattern of sexual abuse of both victims, the particular vulnerability of the victims, Parker’s abuse of the trust relationship with the victims’ mother and the victims and a "level of violence in manipulating [the] victims that is not normally seen in these cases.” Parker does not challenge the trial court’s reasons for imposing an exceptional sentence, and we find they are sufficient to justify the sentence.
Affirmed.
Coleman and Cox, JJ., concur.
Review granted at 130 Wn.2d 1007 (1996).
State v. Barberio, noted at 57 Wn. App. 1070 (1990).
RCW 9.94A.210(4) provides that a reviewing court should uphold an exceptional sentence unless it finds "(a) [e]ither that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or (b) that the sentence imposed was clearly excessive or clearly too lenient.”
Parker does not argue that the exceptional sentence imposed here was clearly excessive and, under Ritchie, it was not.
We note that, because the trial court in Gurrola relied on the standard range to impose its exceptional sentence, a remand would be required under our holding here as well.
