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Washington v. Creekmore11/6/1989
vous bodily harm. See RCW 9A.36.020(1)(b); instruction 13. Creekmore's commission of a subsequent act of felony murder by criminal mistreatment, by withholding medical treatment from his own child or a child in his physical custody, does not reduce the seriousness of a felony murder by second degree assault. Rather, the abuse of parental trust and responsibility increases his culpability.
The fifth reason, no mitigating factors, is not an aggravating factor, any more than the absence of aggravating factors creates a mitigating circumstance. See Armstrong, 106 Wash. 2d at 551. However, the trial court had ample justification to exceed the standard range, and the lack of mitigation was relevant to the length of the sentence ultimately imposed. Thus, the trial court's reference to " no mitigating factors" should be considered in the final inquiry, whether the sentence is "clearly excessive." RCW 9.94A.210(4)(b).
The Sentence Is Not "Clearly Excessive".
An exceptional sentence is "clearly excessive" only if no reasonable person would impose it. State v. Nelson, 108 Wash. 2d 491, 504-05, 740 P.2d 835 (1987); State v. Pascal, 108 Wash. 2d 125, 138-39, 736 P.2d 1065 (1987); State v. Armstrong, 106 Wash. 2d 547, 550, 723 P.2d 1111 (1986);
Oxborrow, at 531. "The practical effect of this standard is to guarantee that an appellate court will 'rarely, if ever' overturn an exceptional sentence because of its length." State v. Clinton, 48 Wash. App. 671, 678, 741 P.2d 52 (1987) (quoting Armstrong, at 553 (Goodloe, J., dissenting)); State v. Handley, 54 Wash. App. 377, 381, 773 P.2d 879 (1989).
Stated otherwise, the "clearly excessive" prong of appellate review under the sentencing reform act gives courts near plenary discretion to affirm the length of an exceptional sentence, just as the trial court has all but unbridled discretion in setting the length of the sentence. This necessarily follows from the lack of a legislative definition of "clearly excessive" and from the abuse-of-discretion standard of review. See RCW 9.94A.210(4)(b); State v. Oxborrow, 106 Wash. 2d 525, 529-30, 723 P.2d 1123 (1986).
Appellate court discretion to affirm under the "clearly excessive" prong is a legislative creation, not a judicial one. Oxborrow, at 529-31; Pascal, at 138-39. The Legislature can always limit that discretion if it desires to do so. Oxborrow, at 532. Until that time, the Legislature has delegated the decision to us.
No case of this court or of our Supreme Court has ever reversed an exceptional sentence because of its length. We see no basis for making this the first.
We recently upheld a 648-month sentence for first degree murder. State v. Harmon, 50 Wash. App. 755, 750 P.2d 664, review denied, 110 Wash. 2d 1033 (1988). A longer sentence has been imposed for felony murder based on deliberate cruelty. See State v. Drummer, 54 Wash. App. 751, 775 P.2d 981 (1989) (660 months). Neither case involved the scourge of child abuse. Eli was a defenseless, 3-year-old child killed mercilessly by his own father. The killing, although less bloody and arguably less brutal than the murders in Harmon and Drummer, was every bit as cruel. Eli's suffering was more prolonged and perhaps mo
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