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Washington v. Creekmore11/6/1989
in the same jurisdiction. Solem, at 298; State v. Bowen, 51 Wash. App. at 48. In Washington, if Creekmore had raped Eli, rather than killed him, he could have received life imprisonment. Former RCW 9A.44.070, now 9A.44.073. Creekmore could have been sentenced to life imprisonment for first degree assault, kidnapping, arson, burglary, or robbery, as well. Former RCW 9A.36.010(2), .40.020(2), .48.020(2), .52.020(2), .56.200(2). The third prong also looks to maximum penalties, but in other jurisdictions for the same conduct. Solem, at 299. In 5 states, Creekmore could have been sentenced to death; in another 29, to life imprisonment without possibility of
parole; in 4 more, to at least 60 years. In sum, 38 states would permit a greater sentence than Creekmore received, and only 11 would require a lesser.
Creekmore erroneously relies on a sampling of cases from other jurisdictions in which shorter sentences were imposed. The sampling is irrelevant because it disregards the permissible sentence in those jurisdictions, and because it is not necessarily representative. He does not contend the sampling is randomly selected or that it is statistically significant.
Creekmore argues that eligibility for parole is critical to an Eighth Amendment analysis. However the most that can be said is that parole "may complicate the comparison, depending upon the time and conditions of its availability." Solem v. Helm, 463 U.S. at 294 n.19. In Solem v. Helm, unavailability of parole for life was significant because "Helm's crime was 'one of the most passive felonies a person could commit.'" Solem, at 296 (quoting State v. Helm, 287 N.W.2d 497, 501 (S.D. 1980) (Henderson, J., dissenting)). Here, in contrast, Creekmore's crime was violent and heinous. " learly no sentence of imprisonment would be [unconstitutionally] disproportionate" for felony murder. Solem v. Helm, 463 U.S. at 290 n.15 (referring to Enmund v. Florida, supra).
Conclusion
Creekmore was properly convicted; any felony will support a charge for second degree felony murder. The trial court had substantial and compelling reasons to impose a 60-year sentence. The sentence is not clearly excessive, and it is certainly not cruel and unusual punishment.
We affirm.
Disposition
Holding that the felony murder charge was supported by evidence of qualifying felonies and that the sentence was adequately justified, not excessive, and not cruel or unusual, the court affirms the judgment.
Forrest, J. (concurring)
I concur in the result. This is an aggravated crime. The facts of the case as set out in the majority opinion abundantly justify an exceptional sentence and indeed a severe exceptional sentence. Nonetheless, in my opinion, the sentence imposed is "clearly excessive". This opinion is based on the overall Washington sentencing grid for crimes, the standard range for the new crime of homicide by abuse created in response to the facts of this case, the facts in other child abuse cases, and the proportionality between the facts and the penalty. However, I am unable to say that no reasonable judge would impose such a sentence. Accordingly, under present law I am bound to concur in the result.
Because of the importance of the standard of review of exceptional sentences, I briefly state my objections to the current standard that reviews the duration of an exceptional sentence only for an abuse of discretion. By definition, an abuse of discretion standard permits a wide range of sentencing. That width is illustrated by this case. The maximum sentence within the standard range would be 192 months. A sent
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