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Washington v. Creekmore11/6/1989
appellate court's announcement that a sentence of 20 years is not in its judgment "clearly excessive" furnishes much greater guidance to trial courts than simply holding that 20 years is not an abuse of discretion. Indeed, approving a sentence of 20 years using an abuse of discretion standard
does not even establish if it is the maximum that could be imposed. It therefore provides no effective guidance.
Another problem exists. If an appellate court does find the duration of a sentence to be an abuse of discretion, how should the matter be handled? Is the case remanded with no specific direction as to the appropriate sentence? What is the trial judge to do? Except in the unlikely case where the appellate opinion has presented a genuinely new consideration, the trial court presumably remains of the same opinion. Surely the judge exercised his best judgment at the time he determined the original sentence. He now must guess how much to reduce the sentence in order to have it approved on a new appeal. No "correct" sentence exists. The trial judge must ask: Is a reduction of 10 percent what the appellate court had in mind? Or perhaps 20 percent? This indirect approach to establishing the appropriate sentence is not a satisfactory method of implementing the SRA.
A determination by three appellate judges as to the appropriate duration of an exceptional sentence represents the common agreement of three minds. Such sentences will presumably cluster around a narrower range than those of individual trial judges. Appellate judges are somewhat removed from the immediate impact of the trial and the community in which it took place. Such detachment should help ensure fairness and proportionality. In due course, there will be examples of analogous facts and durations to help structure the results. There will never be one demonstrably correct sentence. It will never be possible to say that 20 years is right and 21 years is wrong. The fact that it is a question of range rather than an exact number does not alter the appellate court's responsibility to independently determine a result appropriate to the reasons given by the trial judge.
Norms and patterns will develop. A trial judge will be able to compare the unique facts of his case with the facts
of other cases, and then relate his sentence to other sentences which have been specifically approved at the appellate level. An abuse of discretion standard will never produce a common law of sentencing as to the duration of exceptional sentences. Appellate court determinations will. Having appellate court judges express their own judgment as to the appropriate duration by either affirming the exceptional sentence or reducing it to what they deem an appropriate length is new. But sentencing under the SRA is sui generis. In my judgment, the only way to structure sentencing in regard to the length of an exceptional sentence, and thus properly implement the SRA, is for the appellate court to accept this responsibility.
Appendix 1
Reasons for an Exceptional Sentence Approved on Appeal
Reasons specifically listed as illustrative in RCW 9.94A.390
1. State v. Altum, 47 Wash. App. 495, 735 P.2d 1356, review denied, 108 Wash. 2d 1024 (1987)
First Degree Rape, Second Degree Robbery
Standard Sentence Range: 98-130 months
Imposed Sentence: 480 months
Reasons Given: A. Excessive violence, brutality
B. Victim particularly vulnerable
C. Repeated acts of forcible intercourse
2. State v.
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