State v. Ritchie

894 P.2d 1308, 126 Wash. 2d 388, 1995 Wash. LEXIS 159

Opinions

Brachtenbach, J.

Footnotes

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— These cases involve exceptional sentences above the standard range. State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993); State v. Hamrick, unpublished decision noted at 71 Wn. App. 1071 (1993), review granted, 125 Wn.2d 1007 (1994); and State v. Ritchie, unpublished commissioner’s decision, review granted, 125 Wn.2d 1007 (1994). We granted petitions for review, but limited review to the length of the exceptional sentence. We affirm in each case.

Defendants and amicus curiae urge that we judicially impose requirements and limitations on the length of excep tional sentences above the standard range. Our references to exceptional sentences are limited to those above the standard range.

The requirements and limitations urged by Defendants and amicus curiae are summarized as follows: (1) trial courts must state the reasons for a particular length of an exceptional sentence which reasons cannot be at odds with the purpose of the Sentencing Reform Act of 1981 (SRA); (2) such sentence must be proportionate to all sentences in similar cases with the same salient factors; (3) such sentence must be compared to the average sentence for the involved crime; (4) comparison must be made to the average sentence for more serious crimes; and (5) comparison must be made to the midpoint sentence of the standard range for this crime. We reject all of the suggested requirements and limitations.

The foundation of Defendants’ suggestions is the general declaration of purpose in the SRA, citing particularly RCW 9.94A.010(1) and (3) which provide:

(1) Ensure that the punishment for a criminal offense is proportionate to the seriousness of the offense and the offender’s criminal history;

(3) Be commensurate with the punishment imposed on others committing similar offenses;

Equally important are sections (2) and (4):

(2) Promote respect for the law by providing punishment which is just;

(4) Protect the public!.]

We start with the relevant sections of the statute. The trial court may impose an exceptional sentence only "if it finds, considering the purpose of this chapter, that there are substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A.120(2). It is important to note that the trial court, when deciding to impose an exceptional sentence, is directed specifically to consider the purpose of the SRA. No such direction is given to the appellate court in RCW 9.94A.210 which governs the method and extent of appellate review. Indeed, the statute provides an exceptional sentence is "subject to review only as provided for in RCW 9.94A.210(4)”. (Italics ours.) RCW 9.94A.390. None of the suggested requirements or limitations is provided for in RCW 9.94A.210(4), nor is any implied.

Thus the SRA itself rejects the idea that appellate review is subordinated to the general declaration of purpose. In contrast, only in deciding to impose an exceptional sentence is any court directed to consider the general statement of purpose of the SRA. Rather, review is specifically restricted and constrained by the declaration that it shall be only as provided for in RCW 9.94A.210(4). RCW 9.94A.390.

We first consider whether the trial court must articulate reasons for the length of an exceptional sentence. No language in the SRA imposed such a requirement; indeed, the statute strongly suggests otherwise. When the Legislature wanted a statement of reasons for a particular decision it so stated in clear language. RCW 9.94A.120(3) requires the trial court to set forth reasons for its decision to impose an exceptional sentence. There is no such statutory requirement as to the length of an exceptional sentence.

As noted, appellate review is limited by the statute. An exceptional sentence must be reversed if the reasons for the exceptional sentence are not supported by the record or if those reasons do not justify an exceptional sentence. RCW 9.94A.210(4). If the reasons are supported by the record, and justify an exceptional sentence, then, to reverse an exceptional sentence, we must find "that the sentence imposed was clearly excessive or clearly too lenient”. (Italics ours.) RCW 9.94A.210(4)(b).

Starting with State v. Oxborrow, 106 Wn.2d 525, 530, 723 P.2d 1123 (1986), we consistently have held that the "length of an exceptional sentence should not be reversed as 'clearly excessive’ absent an abuse of discretion.” Oxborrow, at 530. State v. McAlpin, 108 Wn.2d 458, 467, 740 P.2d 824 (1987); State v. Dunaway, 109 Wn.2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987); State v. Pryor, 115 Wn.2d 445, 450, 799 P.2d 244 (1990); State v. Stephens, 116 Wn.2d 238, , 803 P.2d 319 (1991); State v. Batista, 116 Wn.2d 777, 792, 808 P.2d 1141 (1991).

The statute does not define "clearly excessive”, but Ox borrow provided a definition. There we explained that our adoption of the abuse of discretion standard was based on three important sources. First, we examined the language of the SRA. Second, we noted that the Sentencing Guidelines Commission stated that an exceptional sentence "shall be subject to review only for abuse of discretion”. Third, Oxborrow adopted the interpretation of identical language in the Juvenile Justice Act of 1977. Oxborrow, at 530-31.

The term "clearly excessive” is not defined in the Juvenile Justice Act of 1977 and, therefore, must be given its plain and ordinary meaning. Action is excessive if it "goes beyond the usual, reasonable, or lawful limit.” Thus, for action to be clearly excessive, it must be shown to be clearly unreasonable, i.e., exercised on untenable grounds or for untenable reasons, or an action that no reasonable person would have taken.

Oxborrow, at 531 (quoting State v. Strong, 23 Wn. App. 789, 794, 599 P.2d 20 (1979)). The rationale of Oxborrow bears repeating because it is solidly grounded and remains valid.

Thus, from 1979 in State v. Strong, supra, and from 1986 in Oxborrow, the Legislature has known the judicial definition of the standard of "clearly excessive” and that it is subject to an abuse of discretion standard of review. The Legislature is presumed to be aware of judicial interpretation of its statutes. Friends of Snoqualmie Vly. v. King Cy. Boundary Review Bd., 118 Wn.2d 488, 496, 825 P.2d 300 (1992).

Another principle of statutory construction lends compelling weight to adhering to the Oxborrow holdings. "Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Baker v. Leonard, 120 Wn.2d 538, 545, 843 P.2d 1050 (1993). The Legislature has amended RCW 9.94A.210, but did not change the "clearly excessive” language. Laws of 1989, ch. 214, § 1.

Legislative acquiescence is significant in light of various dissents in our cases which have quarreled with the consistent majority opinions defining and applying the abuse of discretion standard. See, e.g., State v. Armstrong, 106 Wn.2d 547, 552, 723 P.2d 1111 (1986); Oxborrow, at 539. Interestingly the majority of our cases applying the abuse of discretion standard of review are unanimous. See, e.g., State v. McAlpin, supra; State v. Dunaway, supra; State v. Pryor, supra; State v. Stephens, supra.

Fixing of punishment for crimes is a legislative function. State v. Ammons, 105 Wn.2d 175, 180, 713 P.2d 719, 718 P.2d 796 (1986). We have observed that any judicial dissatisfaction with the sentencing scheme goes to the "wisdom of the dispositional standards” and "it is the function of the legislature and not the judiciary to alter the sentencing process.” (Citation omitted.) State v. Bryan, 93 Wn.2d 177, 181, 606 P.2d 1228 (1980). To impose the requirements and limitations proposed by Defendants would be contrary to legislative intent.

We turn to the particular proposals of Defendants. First, they would require the trial court to state reasons for the length of a sentence outside the standard range. As discussed above, the language of the SRA not only does not mandate that, but strongly militates against such interpretation. We have never held that there is any such requirement, despite the urging of the dissent in State v. Smith, 123 Wn.2d 51, 59, 864 P.2d 1371 (1993) (Madsen, J., dissenting).

Decisions of the Court of Appeals which take a contrary view are not correct. For example, State v. Elsberry, 69 Wn. App. 793, 796, 850 P.2d 590 (1993) states that "[tjenable grounds or tenable reasons for any exceptional sentence must be stated in the record. . . . [Tjhere must be a reasonable connection between the reasons given and the duration of the sentence.” For the latter proposition, Elsberry cites State v. Chadderton, 119 Wn.2d 390, 399, 832 P.2d 481 (1992). In fact, Chadderton has nothing to do with the length of an exceptional sentence; it concerned only the rea sons for imposing an exceptional sentence. The foundation of Elsberry’s above holding is wholly faulty. It is overruled to the extent inconsistent herewith.

State v. Pryor, 56 Wn. App. 107, 782 P.2d 1076 (1989), aff’d on other grounds, 115 Wn.2d 445, 799 P.2d 244 (1990) attempted to impose requirements on trial courts which had not then and never have been approved by this court. The Court of Appeals found an abuse of discretion in the sentence. On review, we affirmed on different grounds, but specifically reiterated the abuse of discretion standard. We did not embrace the Court of Appeals requirement that trial courts should "fully state” their reasons for the length of an exceptional sentence. Pryor is overruled to the extent inconsistent herewith.

Another example of error is State v. George, 67 Wn. App. 217, 227, 834 P.2d 664 (1992), review denied, 120 Wn.2d 1023 (1993). Citing only Pryor, it required a statement of reasons for the length of the sentence. That holding is overruled. Additionally, the George court stated:

The Washington Supreme Court has admonished that "[t]he maximum sentence is to be imposed for only the 'worst case’ scenario when the 'circumstances of the crime distinguish it from other crimes of the same statutory category.’ ”

George, at 227. The only Supreme Court case cited for that proposition is State v. Armstrong, supra. The Court of Appeals omits one minor fact — it was quoting from the dissent.

The Court of Appeals, Division One, has held correctly that "the sentencing court need not state reasons in addition to those relied upon to justify the imposition of an exceptional sentence above the standard range in the first instance to justify the length of the sentence imposed.” (Footnote omitted.) State v. Ross, 71 Wn. App. 556, 573, 861 P.2d 473 (1993). We agree.

The analysis in Ross explains well the status of the law:

A careful examination of each of the words used to explain the abuse of discretion standard demonstrates why the pattern in the vast majority of cases cited above has developed. In order to abuse its discretion in determining the length of an exceptional sentence above the standard range, the trial court must do one of two things: rely on an impermissible reason (the "untenable grounds/untenable reasons” prong of the standard) or impose a sentence which is so long that, in light of the record, it shocks the conscience of the reviewing court (the "no reasonable person” prong of the standard). Indeed, once a reviewing court has determined that the facts support the reasons given for exceeding the range and that those reasons are substantial and compelling, there is often nothing more to say. The trial and appellate courts simply reiterate those reasons to explain why a particular number of months is appropriate. This is what our courts refer to when they recite that the length of the sentence must have "some basis in the record”. See, e.g., [State v.] Brown, 60 Wn. App. [60,] at 77[, 802 P.2d 803 (1990), review denied, 116 Wn.2d 1025 (1991)]; State v. Sanchez, 69 Wn. App. 195, 208, 848 P.2d 735, review denied, 121 Wn.2d 1031 (1993).

(Footnote omitted.) Ross, at 571-72. Accord State v. Bedker, 74 Wn. App. 87, 101, 871 P.2d 673 (1994).

Next, Defendants contend the length of an exceptional sentence must be proportionate to sentences in similar cases. We reject a proportionality review for compelling reasons.

First, when the Legislature intended a proportionality review, it specifically enacted that method of review and defined the relevant comparison base. RCW 10.95.130(2)(b). It has not done so in the SRA.

Second, the general declaration of purpose in RCW 9.94A-.010 does not overcome the controlling language of the substantive provisions of the SRA. When the Legislature intended consideration of the general declaration of purpose in the application of a particular procedure, it so provided. Only in RCW 9.94A. 120(2) did it require specific consideration of the purpose of the SRA. This section relates only to the decision to impose an exceptional sentence, not to the length thereof. This explicit direction demonstrates how the substantive provisions are to satisfy the general declaration of purpose.

Third, to require now a proportionality review would be contrary to our consistent interpretation of RCW 9.94A-.210(4) and the Legislature’s acquiescence therein.

Fourth, a proportionality review is inconsistent with RCW 9.94A.210(5) which limits review solely of the record before the trial court. An accurate record of all similar cases, with the same salient factors (whatever that means) would require proof of the facts of such cases from all other 38 counties. Who makes the choice? Who bears the burden to produce? Short of production of the entire trial record, how can the court determine what are the same salient factors? It appears obvious to us that the Legislature never contemplated such a burden and delay as would result from such a requirement and we decline to adopt it.

The other suggested requirements and limitations are rejected. These suggestions all inject a mechanical approach by a comparison to the average sentence to this particular crime throughout the state, or comparison to the average sentence for more serious crimes, or comparison to the midpoint of the standard range for this crime.

The purpose of the SRA is to structure, but not eliminate, discretionary trial court decisions. RCW 9.94A.010. Comparison with, but more importantly limitation by, standard sentences is inconsistent with the trial court having found substantial and compelling reasons to justify an exceptional sentence. Use of the word "exceptional”, by definition, implies a deviation from the norm. Had the Legislature intended to tie the length of exceptional sentences to standard sentences or to correlate the length of exceptional sentences with the standard range of that crime or more serious crimes, it could have easily so provided. Instead, the statute is silent. Any such requirement is completely absent.

The statistics demonstrate rather conclusively that trial courts in fact adhere to the scheme of sentencing provided by the SRA. In 1992, 18,067 adult felony sentences were imposed. Only 372, 2.050 percent, were above the standard range. Washington Sentencing Guidelines Comm’n, A Statistical Summary of Adult Felony Sentencing Fiscal Year 1992, at 21.

We now consider the facts and sentences in each case.

Defendant Scott: The victim was murdered in her home in Seattle. She lived alone, and due to her condition was unable to take care of herself. She was cared for by her neighbor, Defendant’s mother. Because of his mother’s caretaking role, Defendant often did chores for the victim and had access into her home. Defendant knew of the victim’s age and Alzheimer’s condition.

The victim’s body was found in the back bedroom by neighbors. Her face was badly beaten, and she had been strangled both manually and by use of a telephone cord, which was found bound tightly around her neck. She was naked from the waist down, and her blouse and sweater were pulled up. She had more than 20 broken bones, including multiple skull fractures, a fracture at the base of her skull, broken facial bones, two fractured vertebrae in her lower back, and numerous broken ribs. She suffered a subdural hemorrhage, and had two gaping lacerations on the top of her head. There was a faint contusion on the mons pubis. Her right hand had defensive-type wounds indicating she tried to ward off the attack. A broken glass candy jar lid and the victim’s cane were determined to have been used in inflicting the injuries.

Pubic hairs which were removed from the victim’s body and clothing contained the same microscopic characteristics as Defendant’s hairs. Upon execution of a search warrant, police seized numerous pieces of evidence from Defendant’s home, including two bloody socks, a T-shirt with bloodstains and tennis shoes. Blood comparison tests confirmed that the blood on the socks and shirt was consistent with the victim’s blood but not Defendant’s. A bloody shoeprint found at the murder scene was consistent with the size, tread pattern, and wear pattern of tennis shoes belonging to Defendant. Numerous matchbooks and burned matches had been found throughout the victim’s home; two burned matches were found on her abdomen. During the search of Defendant’s bedroom, the police found numerous burned matches and the same brand of matchbook which was found in the victim’s home.

The police found signs of violence, including bloodstains and items displaced in the living room and two bedrooms in the 800-square-foot house. The victim’s wallet had been rifled and its contents strewn on the living room couch, and her checkbook, found on her bed, had been opened.

Defendant, who was 17 years old at the time, was charged with first degree murder. The State alleged that the killing was premeditated and that it was committed during the course of furtherance of robbery and attempted rape. The juvenile court declined jurisdiction, and Defendant was tried as an adult. The jury found Defendant guilty on both theories. In response to special interrogatories, the jury found that the killing had been committed during a first degree robbery and attempted first degree rape.

The standard range term for first degree murder is 240 to 320 months. The trial court concluded that four aggravating factors justified an exceptional sentence outside the standard range. These factors are, at this stage of the proceedings, unchallenged: (1) Defendant’s conduct manifested deliberate cruelty to the victim; (2) there were multiple injuries inflicted; (3) Defendant knew the victim was particularly vulnerable or incapable of resistance due to advanced age, disability, and health; and (4) Defendant used a position of trust to facilitate the crime. The trial court sentenced Defendant to 900 months.

Recitation of these facts and reflection upon the four horrid aggravating factors demonstrate that it was not an abuse of discretion to impose a 900-month exceptional sentence.

Defendant Ritchie: Defendant Ritchie pleaded guilty to a charge of first degree rape of a child. The victim was a 61h-week-old baby girl.

On May 12, 1990, Defendant was visiting at the victim’s family home. He had been a friend of the victim’s mother for over 10 years, and during the year preceding the offense had visited the family frequently. At about 8 p.m. the victim’s parents left the home, leaving their two young children in Defendant’s care. They returned at about 9:30 p.m. When they returned, Defendant appeared nervous and up set. Defendant asked the parents if the baby had been ill recently, and then told them that when he changed her diaper he saw blood and when he checked further, he found that her vaginal area had been injured.

The victim’s parents took her to the hospital. Her labia minora was mildly swollen, the inner part of the labia was bruised, there was a l1/2-centimeter tear from the bottom of the vagina toward the rectum, and her hymen was injured. The medical examination indicated penetration had occurred. Surgery was immediately performed, which took several hours. The baby was hospitalized for several days and was subjected to extreme pain and discomfort.

In Defendant’s statement on plea of guilty he said: "On May 12,1990,1 had sexual intercourse with [the victim], age six and one-half weeks, by inserting my little finger into her vagina.” Clerk’s Papers vol. 1, at 8, 10.

At the time of the offense, Defendant was a 26-year-old chaplain’s assistant in the United States Army who had a college degree in psychology.

Defendant’s offender score was O. The trial court imposed an exceptional sentence of 312 months in prison to be followed by 240 months of community supervision. Defendant appealed the exceptional sentence. The Court of Appeals in an unpublished opinion held that two of the reasons relied upon by the trial court for imposing the exceptional sentence were improper, including Defendant’s future dangerousness, and remanded for resentencing.

A resentencing hearing was held. The trial court entered findings of fact (from which the above statement of facts is derived) and conclusions of law. The court concluded that "defendant’s acts constituted a violation of a position of trust”, and that "[t]he victim was particularly vulnerable and incapable of resistance due to her extreme youth.” Conclusions of law 2, 3; Clerk’s Papers, at 121. These aggravating factors had already been upheld by the Court of Appeals. The trial court also found that "[t]he nature and extent of the injuries inflicted were far more severe than may reasonably be expected in the 'usual case’ Conclusion of law 4; Clerk’s Papers, at 122. The Court of Appeals had expressly said that on remand the sentencing court could consider whether the victim’s injuries were more serious than in the usual case and thus could constitute an aggravating factor. The trial court also concluded that one of the SRA’s purposes is to protect the community as well as the victim, that this purpose is served by granting an exceptional sentence in Defendant’s case, and that "[t]he unique circumstances presented warrant extended confinement, as well as community placement supervision to both protect and prevent contact with the victim and her family.” Conclusion of law 5; Clerk’s Papers, at 122. The court concluded that:

Substantial and compelling reasons exist to impose an exceptional sentence above the standard sentencing range of 51-68 months.

A period of 312 months of confinement followed by 120 months of community placement supervision, is an appropriate sentence considering the nature of the offense and aggravating circumstances enumerated herein. Such a sentence will ensure the defendant’s incarceration until the victim approaches adulthood. The court bases this sentence upon each and any one of the aggravating circumstances previously enumerated, and the identical sentence would be imposed even if only one of the aggravating factors was present.

Conclusion of law 8; Clerk’s Papers, at 123.

The enormity of the vile act of Defendant upon a 61h-week-old child is apparent. Under the above definition of abuse of discretion, there was no abuse of discretion in the length of the exceptional sentence.

Defendant Hamrick: Defendant Hamrick was convicted of second degree assault. The victim was a 20-month-old boy (D.J.).

At the time of the offense, the victim was living with his mother and younger sister at an apartmént in Centralia. The victim’s mother was involved in a relationship with Defendant. On November 10, 1990, in addition to her own children, the mother was babysitting her nephew. Defend ant arrived and made dinner. The children were put to bed about 8:30 to 9:30 p.m. Defendant and the mother went to bed between 11:00 p.m. and midnight. Sometime during the middle of the night Defendant got up to take care of the children, who had awakened.

The next morning the mother awoke at 7 a.m. She got D.J. out of bed, and noticed that he was unable to stand on his right foot. Before this time, he had not had trouble walking. D.J. did not use his left hand to eat breakfast. After breakfast, Defendant took D.J. with him while he went to have his vehicle washed. During the day, D.J.’s condition worsened, and both his foot and elbow began to swell.

The mother took D.J. to a physician, who found fractures in the child’s arms and ankle and referred him to an orthopedic clinic. The next day, the mother took D.J. to the clinic, where he was examined by a physician’s assistant, Steven R. Fisher. The mother told Fisher about a fall down the steps. Fisher found five fractures in D.J.’s left and right arms and right ankle. He also discovered bruises on D.J.’s face, arm, and elbow. Fisher testified that his first impression was that D.J. had been abused. When he told the mother this, she said she believed Defendant had caused the injuries. Fisher also testified that the mother had a "flat affect”, consistent with an abuser or one who was herself abused. Both Fisher and the radiologist who examined D.J.’s x-rays testified that the injuries were not consistent with a fall down several stairs. D.J. responded well to treatment and the fractures healed.

According to the mother, on November 12, 1990, Defendant called and explained that when he picked D.J. up out of his high chair after breakfast the morning of the 11th, he heard D.J.’s arm snap. He told the mother that someone else probably caused the other fractures. At trial, Defendant denied telling the mother he heard D.J.’s arm snap.

On November 16, 1990, Centraba police officer Blair questioned Defendant about D.J.’s injuries. Defendant denied touching D.J., and, according to the officer’s testimony, Defendant said he got up only to check on D.J.’s little sister when he woke up in the middle of the night.

The relationship between the mother and Defendant ended soon after D.J. was injured. Defendant subsequently became involved with another woman, who had an 18-month-old boy. She testified at trial that Defendant told her that he had abused D.J. many times by putting him under the car heater at full blast; forcing him to stand on heat ventilators until the bottoms of his feet were burned; bruising his heels where the injury would not be noticed; holding his head under water until he could not breathe, and then letting him back up; and inflicting bruises under the hairline so they would not be seen. He said he would do these things when the mother was not around or was in the shower. He also told this other woman that he would suffocate D.J.’s little sister until she turned purple and then perform infant CPR on her. He told her that he had lied to the Centralia police about causing D.J.’s injuries. After about 20 minutes of this recitation, he told her that he was joking. At trial Defendant denied making these statements, but conceded that what she said was "somewhat truth” in that on a couple of occasions D.J.’s little sister had stopped breathing and he had performed infant CPR.

On February 28,1990, Defendant was charged with second degree assault of D.J. At trial, in addition to testimony summarized above, the State introduced over Defendant’s objection other bad acts of Defendant. Two of these were initially ruled inadmissible by the trial court, but then were ruled admissible because the Defendant had opened the door to the evidence. The defense itself brought out that Defendant had allegedly assaulted the mother on October 19, 1990. The other incident involved Defendant pushing D.J.’s 10-month-old sister to the floor on the same day. Although Defendant argued to the Court of Appeals that the trial court erred in holding that the defense opened the door to this evidence, the Court of Appeals refused to reach the issue as Defendant had not cited authority to support the argument.

Defendant was convicted of second degree assault. The standard range is 3 to 9 months. The trial court identified four aggravating factors which the court concluded justified an exceptional sentence outside the standard range: (1) Defendant’s conduct manifested deliberate cruelty to the victim; (2) the victim was particularly vulnerable; (3) there was an ongoing pattern of abuse; and (4) Defendant utilized a position of trust to facilitate the commission of the crime. The court imposed an exceptional sentence of 84 months.

We find the sentences not to be clearly excessive.

The sentence in each case is affirmed.

Durham, C.J., Dolliver and Smith, JJ., and Andersen, J. Pro Tern., concur.

Judge Robert F. Brachtenbach is serving as a justice pro tempore of the Supreme Court pursuant to Const. art. 4, § 2(a) (amend. 38).

1

The majority argues its result based on the fact that the SRA intends to structure but not eliminate discretion. Yet the majority’s result does not structure discretion in any way. Instead it allows plenary discretion without effective review, returning exceptional sentences to the days pre-SRA.