State v. Ross

883 P.2d 329, 71 Wash. App. 556, 1994 Wash. App. LEXIS 436
Court of Appeals of Washington·Decided October 28, 1994·No. 25951-2-I·Published·Cited by 81 cases

Opinion

Grosse, J.

David Todd Ross appeals the trial court's determination that substantial and compelling reasons existed to exceed the standard sentencing range on his convictions of two counts of first degree robbery while armed with a deadly weapon and one count of second degree murder. We affirm.

Initially the State charged Ross with eight crimes. Counts 1,2, and 3 alleged two counts of first degree robbery and one of indecent liberties in the robberies of Charlotte Yeary and Rebecca Crichton. Count 4 charged first degree murder for the *560 death of Serena Willers. Count 5 was a charge of first degree robbery of Yulpha Cole, and count 6 alleged first degree robbery of Laura Kelsey. Counts 7 and 8 were allegations of first degree rape and first degree robbery of Sandra Jackson. Ross entered an Alford 1 plea to a reduced charge of murder in the second degree (count 4) and two counts of robbery in the first degree (counts 2 and 8). The remaining counts were to be dismissed at sentencing. When Ross pleaded, he agreed in writing that the State would be entitled to recommend a sentence outside the standard range and that the State could introduce testimony of all the victims of the originally charged crimes to support an exceptional sentence.

Based on Ross' offender score, the standard range for each of the robberies was 111 to 140 months. The standard range for the murder was 216 to 288 months. At the sentencing hearing the State requested an exceptional sentence of 720 months on the murder conviction. The State based this request on numerous aggravating factors: deliberate cruelty; that the robberies took place over protracted periods of time; the crimes were exploitive and marked by gratuitous infliction of psychological and emotional pain; the murder was vicious, violent and bordered on torture; the victims were particularly vulnerable; the victims' zones of privacy had been invaded; the crimes were an escalation of violence; Ross presented an extraordinary danger to society, particularly to women; and that Ross showed no remorse for his crimes.

At the sentencing hearing the court heard the testimony of the medical examiner who performed the autopsy on Serena Willers, her family and friends, the victims of the robberies, including victims of the crimes for which charges were to be dismissed, two detectives involved in the investigation of the crimes, a community corrections officer who had been assigned to supervise Ross on his previous probation periods, and Ms. Ramsey, the community corrections *561 officer who prepared a presentence investigation report for sentencing on these crimes. Ramsey recommended a sentence of 960 months on the murder to insure, as she said, that Ross would not be released until he was in his eighties. Ross also testified on his own behalf.

Following the hearing and argument of counsel, the court found beyond any doubt that there were a substantial number of aggravating circumstances. The court then indicated that it had referred to the life expectancy tables and found the defendant had a life expectancy of 73 years. The judge said he was convinced that if Ross were at large again, he would have the same compulsion and continue to commit similar crimes. The court imposed a sentence of 840 months, or 70 years, with the likely possibility of good time credit reducing the sentence to 46.69 years.

At a subsequent hearing on findings and conclusions, the trial judge stated that his decision was a "two track proposition": One track was a sentence based on Ross' life expectancy, making sure he would not be released from prison until he was old and harmless. The "other track" was simply that "there is enough viciousness in this case and enough persistence of it in these particular crimes to justify all of the time that is involved regardless of the defendant's age."

A sentencing court may impose a sentence outside the standard range if it finds there are "substantial and compelling reasons justifying an exceptional sentence.” RCW 9.94A-.120(2). Under the Sentencing Reform Act of 1981 (SRA) an exceptional sentence is subject to appellate review pursuant to RCW 9.94A.210(4), which provides:

To reverse a 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 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.

Review under subsection (a) involves a 2-part analysis. First, this court must determine whether the trial court's *562 reasons for imposing an exceptional sentence are supported by the record. This is a factual inquiry to which we apply a clearly erroneous standard of review. State v. Post, 118 Wn.2d 596, 614, 826 P.2d 172, 837 P.2d 599 (1992). See also State v. Estrella, 115 Wn.2d 350, 355, 798 P.2d 289 (1990). Second, we independently determine whether, as a matter of law, the sentencing judge's reasons justify imposition of a sentence outside the presumptive range. Post, 118 Wn.2d at 614. Finally, under subsection (b), we decide whether the trial court abused its discretion by imposing a sentence that is clearly excessive. State v. Grewe, 117 Wn.2d 211, 214, 813 P.2d 1238 (1991).

I

Grounds for Exceptional Sentence

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State v. Ross, 883 P.2d 329, 71 Wash. App. 556, 1994 Wash. App. LEXIS 436 (Wash. Ct. App. 1994).

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