State v. Parker

916 P.2d 467, 82 Wash. App. 130
Court of Appeals of Washington·Decided May 28, 1996·No. No. 34165-1-I·Published·Cited by 2 cases

Opinion

Agid, J.

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 [132]*132given, any error in calculating the standard range is harmless. As that was the case here, we affirm.

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 [133]*1333, the seriousness level of count 1 as 11 and the seriousness level of count 2 as 10. The PSI recited the standard ranges as 102-136 months for count 1 and 67-89 months for count 2. The community corrections officer who prepared the PSI recommended an exceptional sentence of 204 months for count 1 and 134 months for count 2, twice the bottom of the standard range for each offense, to be served concurrently. The State relied on the same standard range at sentencing. It asked the court to sentence Parker to the top of the standard range for each offense and to impose an exceptional sentence by running the terms consecutively, for a total of 225 months. The court sentenced Parker to 132 months for count 1 and 84 months for count 2 and imposed an exceptional sentence by ordering that the sentences run consecutively, for a total of 216 months. See RCW 9.94A.400 (consecutive sentences may be imposed only under the exceptional sentence provisions).

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. [134]*134In Gurrola, the State charged three counts of first degree rape of a child. It alleged that count 1 occurred between July 1, 1989, and April 1, 1990, and that counts 2 and 3 occurred between April 1, 1990, and February 28, 1991. At sentencing, the court relied on the 1990 amendments to the SRA to determine the seriousness level of the crime, even though the State had alleged acts occurring before the effective date of the amendments. The court imposed an exceptional sentence of 388 months calculated by running two top of the. standard range terms consecutively. Division Three of this court held that the trial court erred in relying on the 1990 amendments because the offenses described in count 1 occurred before July 1, 1990, and the State had not proven that the offenses described in counts 2 and 3 occurred after that date. The sentence therefore violated ex post facto prohibitions because it permitted imposition of a more severe punishment. 69 Wn. App. at 158-59. The court reversed the sentence and remanded for resentencing under the earlier version of the statute.

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 [135]

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State v. Parker, 916 P.2d 467, 82 Wash. App. 130 (Wash. Ct. App. 1996).

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