Opinion
No. 51695-7-I
Filed: November 22, 2004 UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 02-1-01114-9. Judgment or order under review. Date filed: 12/16/2002. Judge signing: Hon. James H Allendoerfer.
Counsel for Appellant(s), John Rodney Crowley, Crowley Law Firm, 601 Union St Ste 4610, Seattle, WA 98101-4050.
Counsel for Respondent(s), Mary Kathleen Webber, Snohomish County Prosecutors Office, Msc 504, 3000 Rockefeller Ave, Everett, WA 98201-4061.
Roger D. Shillinglaw was charged with two counts of Rape of a Child in the First Degree, each count allegedly having occurred between January 1, 1997, and May 6, 2002. He was convicted of both counts at a bench trial on stipulated facts as contained in the police reports. Both Shillinglaw and the State appeal the trial court's sentence. Shillinglaw contends that his sentence violates the prohibition against ex post facto laws. The State contends that the trial court used the wrong multiplier and seriousness level and ought to have made express findings of fact justifying its application of statutes that took effect during the charging period with respect to at least one of the counts. Because the trial court made several sentencing errors as described in this opinion, we vacate the sentence in its entirety and remand for resentencing.
`A person is guilty of rape of a child in the first degree when the person has sexual intercourse with another who is less than twelve years old and not married to the perpetrator and the perpetrator is at least twenty-four months older than the victim.' RCW 9A.44.073(1). `Sexual intercourse' is defined as `any act of sexual contact between persons involving the sex organs of one person and the mouth or anus of another whether such persons are of the same or opposite sex.' 9A.44.010(1)(c).
I.
Before the charging period in Shillinglaw's case, the Legislature amended former RCW 9.94A.360 to require that each juvenile and adult sex offense conviction count as 3 points. See, Laws of 1990 Ch. 3, sec. 701; 706. Effective July 27, 1997 during Shillinglaw's charging period the Legislature raised the serious level of Rape of a Child in the First Degree from level XI to level XII. As of that date, a multiplier of 3 with a seriousness level of XII yielded a standard sentencing range of 120 to 160 months in Shillinglaw's case. Under previous law before either of these amendments, a multiplier of 1 with a seriousness level of XI would have given him a standard sentencing range of 102 to 136 months.
Before 2001, all sexual offenders were sentenced to a determinate sentence. See, former RCW 9.94A.120, Laws of 2000, Ch. 226, sec. 2. A defendant convicted of a sex offense committed between June 6, 1996, and July 1, 2000, was also sentenced to 3 years of community custody. RCW 9.94A.710. A defendant who failed to comply with the terms of community custody could be subject to up to 60 days of incarceration for each violation. RCW 9.94A.634(c).
In 2001 during the charging period the Legislature reenacted former RCW 9.94A.120, now RCW 9.94A.505, to provide for additional penalties for certain sex offenses, including First Degree Rape of a Child. See, Laws of 2001 Ch. 10, sec. 2; Laws of 2001 2nd Special Session Ch. 12, sec. 312. Under the new statute, which became effective September 20, 2001, a defendant who commits First Degree Rape of a Child after September 1, 2001, is required to be sentenced to a maximum term consisting of the statutory maximum sentence for the offense, and a minimum term of confinement. See, RCW 9.94A.712(3). The defendant serves any time after release from confinement up to the expiration of the maximum term on community custody. See, RCW 9.94A.712(5); .712(6). And a defendant who is determined to have violated a condition of community custody can have his or her community custody status revoked. See, RCW 9.94A.712(6); 9.94A.425-440.
Thus, although the change in the multiplier from 1 point to 3 points for sex offenses happened before the charging period in this case, the changes to the seriousness level for First Degree Rape of a Child, the change from a determinate to an indeterminate sentencing scheme, and the changes to the provisions relating to community custody and what happens in the event of a violation of the terms and conditions of community custody, all took place during the charging period for Shillinglaw's case. And all these changes, taken together, constitute increased penalties for the offense. Thus, to avoid violation of the state and federal prohibitions against ex post facto laws, the State concedes, and we agree, that it must prove that at least some of the acts constituting the charged offenses occurred after the effective dates of the new statutes here relevant. See, State v. Parker, 132 Wn.2d 182, 191, 937 P.2d 575 (1997). See also, In re Personal Restraint of Hartzell, 108 Wn. App. 934, 33 P.3d 1096 (2001).
II.
At sentencing, the defense took the position that Shillinglaw's multiplier was 1, the seriousness level was XI, that each offense should have a standard range of 102 to 136 months, and that a determinate sentence should be imposed within that range because to apply the higher multiplier and seriousness level and the new indeterminate sentencing statute would violate the prohibition against ex post facto laws. The State took the position that Shillinglaw's multiplier was 3, the seriousness level was XII, and the standard range sentence was 120 to 160 months of confinement, but that the court was required to set a maximum term of life imprisonment under RCW 9.94A.712(3). The State requested a minimum term of 120 months. The trial court determined the standard range to be 102 to 136 months of confinement; thus the court seemingly counted each current offense as 1 point with a seriousness level of XI, although it stated it was applying a seriousness level of XII. Then, the court applied the indeterminate sentencing scheme and imposed an exceptional minimum sentence of 180 months after making findings that are unchallenged for this appeal, to justify an exceptional minimum sentence. The court made no findings of fact regarding the specific dates of any of the criminal acts encompassed in the two counts, and was not requested by either party to do so.
Neither party challenges the imposition of the exceptional minimum sentence, in and of itself. While this appeal was pending, however, the United States Supreme Court handed down Blakely v. Washington, U.S., 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004). Because we are vacating the sentence in its entirely and remanding for resentencing, and because any changes brought about by Blakely occurred during the pendency of this appeal, the parties are not precluded from raising and responding to any potential Blakely issues they may perceive to exist following our remand.
III.
The record shows that various incidents of sexual contact occurred between Shillinglaw and the victim commencing in 1997 when the victim was five years old, and that the most recent incident occurred on Friday, May 3, 2002. Shillinglaw's wife, who is the victim's mother, reported the abuse to the police. Shillinglaw then confessed to the most current incident, to an additional incident in March of 2002, and to other previous incidents dating back to 1997. Shillinglaw was convicted on December 13, 2002, of both counts. Although the record would support express findings that two criminal acts occurred after the effective date of the indeterminate sentencing statute, the court's findings of fact and conclusions of law reflect only that his convictions were based on acts committed between January 1, 1997 and May 6, 2002.
The record shows that Shillinglaw admitted to sexual contact with the victim that involved touching his penis to the victim's anus and mouth, touching the victim's penis to Shillinglaw's anus, and ejaculating on the victim.
The trial court's Judgment and Sentence states that Shillinglaw's convictions were based on acts committed between January 1, 1997, and March 6, 2002. Apparently, this is a typographical error because the trial court's Findings of Fact and Conclusions of Law state that the convictions are based on acts committed between January 1, 1997, and May 6, 2002, and the record supports these findings.
At sentencing, the State asserted that based on Shillinglaw's lack of a prior criminal history, his offender score on each count was 3, the seriousness level of the crime was XII, and thus the standard range under the `new statute' was 120 to 160 months with a maximum term of life on each count. The State then recommended a minimum sentence of 120 months on each count, to run concurrently. The Defendant countered that the appropriate sentencing range was 102 to 136 months. The Defendant argued that based upon the trial court's findings of fact, part of the time period for which Shillinglaw was found guilty predated the enactment of the `new statute.' The Defendant asserted that although the new statute would increase Shillinglaw's sentencing range, allowing a `multiplier of three,' rather than a `multiplier of one' to Shillinglaw's convictions, it did not apply to Shillinglaw's crimes because it was enacted in July of 2000, during the charging period. The State noted that the trial court's findings reflected that the charged acts occurred both before and after the enactment of the `new statute' and argued that the court could impose the standard range specified under the new statute.
Neither party mentioned at sentencing which `new statute[s]' they referred to, but both agree on appeal that the court applied RCW 9.49A.712 (September 1, 2001) to Shillinglaw's sentence.
After the discussion of the proper sentencing range, the court commented that both the presentence investigator and Shillinglaw's wife had requested that the court consider an exceptional sentence upward based on the vulnerability and age of the victim. The court heard argument from both the defendant and the State on this issue. At the conclusion of this argument, the trial court assigned an offender score of 1 to each of the two convictions based on Shillinglaw's lack of criminal history. The court also calculated a seriousness level of XII for each conviction, but determined that the minimum standard sentencing range for the offenses was 102 to 136 months. However, the court also found that compelling reasons existed which justified an exceptional minimum term above the standard range for both counts. The trial court entered additional findings of fact that provided: (1) the defendant demonstrated lack of remorse for his crimes; (2) the victim suffered from disabilities that prevented him from communicating and telling authorities; (3) the victim was particularly vulnerable due to his disabilities; (4) the victim was particularly young (five years old); (5) the crime took place over a five-year period; (6) the victim was severely impacted by the defendant's acts; and (7) and that the defendant was at a high-risk for re-offense. Thus, the court sentenced Shillinglaw to a minimum term of 15 years (180 months) for each conviction, the sentences to run concurrently.
Both parties appeal Shillinglaw's sentence. Shillinglaw appeals the trial court's imposition of a statutory minimum term of confinement, pursuant to RCW 9.94A.712. The State cross-appeals, asserting that the trial court's erroneous computation of the multiplier and seriousness level of the crimes improperly resulted in a lower minimum standard sentencing range of 102 to 136 months, rather than 120 to 160 months. However, neither party appeals the trial court's decision to grant an exceptional sentence upward based on the various factors found by the trial court. Because we conclude that the court clearly erred in calculating the multiplier and seriousness range of the crimes and remand is required, we discuss the cross-appeal first.
DISCUSSION I. Calculation of Offender Score and Seriousness Level of Crimes
The State cross-appeals the trial court's calculation of Shillinglaw's standard range sentence as 102 to 136 months. The State argues that the trial court erred in computing Shillinglaw's multiplier at 1, because it failed to apply the July 1, 1990 amendments of RCW 9.94A.360, which elevated Shillinglaw's multiplier to 3. RCW 9.94A.360(17). The State points out that this calculation was inconsistent with the trial court's assignment of a seriousness level of XII to the offense, a recognition that the 1997 amendments to the previous RCW 9.94A.310-.320 increased the seriousness level of First Degree Rape of a Child from a level XI to a level XII. RCW 9.94A.310-.320 (July 27, 1997) (re-codified at RCW 9.94A.510-.515 (July 1, 2001)). The State asserts that this error in computing Shillinglaw's offender score resulted in the erroneous calculation of a standard minimum sentencing range of 102 to 136 months, rather than 120-160 months. See, e.g., RCW 9.94A.510 (2000). The State is correct.
RCW 9.94A.360 was enacted in 1990, six and a half years prior to the acts committed by Shillinglaw upon which his convictions are based. Thus, the provisions of RCW 9.94A.360(17) should have been applied to apply a multiplier of 3 to each of Shillinglaw's convictions and the trial court erred in failing to do so. A sentencing court is without statutory authority when it imposes a sentence based upon a miscalculated offender score. In re Johnson, 131 Wn.2d 558, 568, 933 P.2d 1019 (1997) (citations omitted).
Remand for recalculation of the offender score and minimum standard sentence is appropriate. This recalculation should be made in conjunction with additional, express findings regarding the dates the offenses occurred, as discussed below. We note that Shillinglaw has not contested the trial court's determination that the seriousness level of his convictions is XII, pursuant to the current RCW 9.94A.510 and RCW 9.94A.515. Thus, a standard minimum range for his offenses based on the SRA sentencing grid would be 120 to 160 months.
II. Application of RCW 9.94A.712
Shillinglaw argues that the trial court erroneously relied on the current version of RCW 9.94A.712. This sentencing statute allows for indeterminate sentencing for certain sex offenses, including First Degree Rape of a Child, and requires the court to impose the maximum statutory term and to impose both a minimum term of confinement and community custody up to the maximum sentence for the offense, rather than a determinate sentence of only a minimum term and three years of community custody as under the previous sentencing provisions. Compare, RCW 9.94A.712(1), (3) (2001); RCW 9.94A.120 (2001); RCW 9.94A.120 (2000); RCW 9.94A.710 (1996). RCW 9.94A.712 was adopted and in effect on September 1, 2001, after the date of the commission of some of his criminal acts contained in the charges, thus, Shillinglaw argues that his sentence automatically violates the prohibition against ex post facto laws. Although Shillinglaw is incorrect in his ultimate conclusion, it is true that the State must prove and the sentencing court must find that at least one of multiple acts included in a single count occurred after the effective date of a new penalty statute, before applying that penalty statute to the given count.
A law violates the ex post facto clauses of the federal and Washington state constitutions if it inflicts a greater punishment than the law annexed to the crime when the crime was committed. State v. Ward, 123 Wn.2d 488, 497, 869 P.2d 1062 (1994), citing Calder v. Bull, 3 U.S. 386, 1 L. Ed. 684 (1798). The State concedes that RCW 9.94A.712 increases the penalties for the applicable crimes, and concedes because it is retroactive only to September 1, 2001, its application to crimes committed previous to this date would be a violation of ex post facto prohibitions. See, e.g., Parker, 132 Wn.2d at 191.
However, the State also cross-appeals, asserting that the trial court erred in failing to make a specific finding that at least one of the charged offenses, the final May 3, 2002 offense which was reported to the police, occurred after the effective date of the statute. The State requests that we remand the case for a specific finding that at least the most current offense was committed during the effective date of RCW 9.94A.712. We also note that the record reflects that Shillinglaw admitted another act, in March 2002, that falls within the effective date of the amended statutes. Parker addressed a situation analogous to the one presented here. Parker, 132 Wn.2d 182. In Parker, a defendant committed various criminal acts over a period of five years, and the penalties for the crimes were increased during the fourth year. Evidence was presented that the defendant committed the acts before the increase in penalties and the State was not required to prove at trial that the defendant committed the acts after the penalty increase. The trial court improperly calculated the standard range sentence and then imposed an exceptional sentence by requiring that the sentences be served consecutively. Parker, 132 Wn.2d at 191. Parker held that improper calculation of the standard range sentence renders the exceptional sentence subject to review and remand for resentencing `unless the record clearly indicates the sentencing court would have imposed the same sentence anyway.' Parker, 132 Wn.2d at 192-93.
Although the trial court's findings reflect that Shillinglaw's convictions were based on incidents of `sexual intercourse' with the victim that occurred between January 1, 1997 and May 6, 2002, the uncontested evidence was that Shillinglaw committed a discreet incident of sexual contact with the victim on Friday, May 3, 2002. The record also shows that Shillinglaw admitted to sexual contact with the victim in March of 2002, as well as to various other incidents dating back to 1997, when the victim was five years old. Therefore, the record clearly shows that at least two incidents occurred in March and May of 2002, sufficient to satisfy the requirements of Rape of a Child in the First Degree in violation of RCW 9A.44.073, and after the effective date of RCW 9.94A.712. Further, the trial court required that the two counts be served concurrently. Thus, if the record supports a finding that at least one count occurred after the effective date of RCW 9.94A.712, the court would not have erred in applying it to that count.
The trial court based its sentence pursuant to the statute solely on the brief finding that `[b]etween January 1, 1997 and May 6, 2002, [Shillinglaw] had sexual intercourse with [the victim].' Clerk's Papers at 24. At resentencing, the court must specify, based on specific findings, which of the counts is eligible for sentencing under the new statute and which of Shillinglaw's acts charged in each count makes it so.
We vacate the sentence in its entirety and remand for resentencing.
ELLINGTON, A.C.J. and AGID, J., concur.