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Washington v. Creekmore11/6/1989
The trial court sentenced Creekmore to 720 months, or 60 years. The standard range was 144 to 192 months, or 12 to 16 years. Creekmore's sentence is 5 times the lower end and 3.75 times the upper end of the standard range.
A trial court may impose a sentence outside the standard range if it finds, considering "the purpose" of the sentencing reform act, "that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). "The purpose" of the act is punishment. See
State v. Schaaf, 109 Wash. 2d 1, 10, 743 P.2d 240 (1987); RCW 9.94A.010(1)-(4). The reasons must "take into account factors other than those which are necessarily considered in computing the presumptive range for the offense." State v. Nordby, 106 Wash. 2d 514, 518, 723 P.2d 1117 (1986).
Appellate review is defined by RCW 9.94A.210(4). See RCW 9.94A.390.
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 . . . or that those reasons do not justify a sentence outside the standard range . . .; or (b) that the sentence imposed was clearly excessive . . .
RCW 9.94A.210(4). The quoted section establishes a 3-part test: (1) Are the reasons supported by the record? (2) Do the reasons justify a departure from the standard range? and (3) Is the sentence "clearly excessive"? State v. Dunaway, 109 Wash. 2d 207, 218, 743 P.2d 1237, 749 P.2d 160 (1987). The first question is answered affirmatively if the trial court's reasons are not "'clearly erroneous'"; the second, if the reasons are adequate as a "'matter of law'"; and the third, if the sentence is an "'abuse of discretion.'" Dunaway, at 218 (quoting Nordby; State v. Oxborrow, 106 Wash. 2d 525, 532, 723 P.2d 1123 (1986)).
The Reasons Are Supported by the Record.
The trial court cited five reasons: (1) Eli's vulnerability, (2) multiple incidents of assault, (3) abuse of parental trust and responsibility, (4) no remorse, and (5) no mitigating factors. Creekmore concedes the first, third, and fifth reasons are supported by the record, but he says the second and fourth are not.
Regarding the second reason, multiple incidents, the trial court said:
You committed multiple crimes against him and I'm referring, for the record, to the May incident when you beat him because you didn't like his bowel movement or lack thereof; on September 26, when you kicked him, when you beat him in the toilet, when you threw him in the toilet.
Even if reference to the "May incident" violated the "real facts" doctrine, RCW 9.94A.371, the record establishes multiple incidents on September 26. Creekmore kicked Eli in the stomach, whipped him with a belt, and left him stuck in a toilet. These multiple incidents do not undermine jury unanimity, as Creekmore argues, because the kick is the only assault which could have caused Eli's death.
Regarding the fourth reason, lack of remorse, Creekmore contends the record does not permit effective appellate review, because the trial court did not identify "those aspects of defendant's conduct to which [it was] referring." State v. Payne, 45 Wash. App. 528, 531, 726 P.2d 997 (1986) (citing State v. Holland, 98
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