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Washington v. Creekmore11/6/1989
it is plainly improper to rely on unpublished decisions of this court. RAP 10.4(h); State v. Fitzpatrick, 5 Wash. App. 661, 668, 491 P.2d 262 (1971). Finally, to find an abuse of discretion, we must conclude that no reasonable judge would impose a 60-year sentence, not that other judges have imposed lesser sentences for similar crimes.
Creekmore contends the Legislature expressed an intent that his crime be punished within the standard range of homicide by abuse.
A person is guilty of homicide by abuse if, under circumstances manifesting an extreme indifference to human life, the person causes the death of a child or person under sixteen years of age, a developmentally disabled person, or a dependent adult, and the person has previously engaged in a pattern or practice of assault or torture of said child, person under sixteen years of age, developmentally disabled person, or dependent person.
RCW 9A.32.055. The Legislature created this offense in response to a public outcry following Creekmore's crime. Senate Journal, 50th Legislature (1987), at 156-58. The standard range for homicide by abuse would be 261 to 347 months, or approximately 22 to 29 years, based on Creekmore's prior conviction of aggravated assault.
Still, Eli's age would warrant an exceptional sentence under the new statute. See State v. Fisher, 108 Wash. 2d at 423-24 (5 1/2-year-old victim; indecent liberties). Creekmore's criminal mistreatment, or abuse of trust, and his lack of remorse for Eli would also be aggravating factors
warranting a departure from the standard range for homicide by abuse. Finally, we doubt the Legislature intended to limit Creekmore's sentence by enacting the crime of homicide by abuse, because rather than limiting criminal responsibility for child abuse, the Legislature expanded it. Senator Talmadge, a chief spokesman for the bill, spoke as follows just before he and his fellow Senators passed it unanimously:
To deal with the problem of child abuse effectively, we have to deal with the criminal law, as we have done in this bill and provide for criminal sanctions to those people who would so far exceed the boundaries of civilized behavior as to do this kind of harm to children. . . .
(Italics ours.) Senate Journal, 50th Legislature (1987), at 157. Senator Deccio added, "We may never solve the problem of child abuse, but we can certainly, . . . through penalties like this, at least make a dent in probably one of the greatest social problems that we've got in the United States today." Senate Journal, at 158. The Legislature clearly intended maximum penalties for child abusers; it would twist their intent by interpreting their actions in favor of Creekmore.
We note that the Legislature did not increase the maximum punishment for child abusers by enacting the crime of homicide by abuse, RCW 9A.32.055. Homicide by abuse is in the same class as first degree murder, but the statutory maximum is no greater than for second degree felony murder. See RCW 9A.32.050(2), .055(3), 9A.20.021(1)(a). The new law simply moves Creekmore's crime from an SRA seriousness level of 12 to a seriousness level of 13. See RCW 9.94A.320. The result is a doubling of the presumptive sentence, from 12 to 24 years, when the defendant's offender score is 1; however, when the offender score is 9 or more, the increase is only one-third, from 29 to 40 years. See
RCW 9.94A.310. A defendant could commit several acts of homicid
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