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Washington v. Miller

April 22, 1991

THE STATE OF WASHINGTON, RESPONDENT,
v.
THOMAS E. MILLER, APPELLANT



Coleman, J. Webster, A.c.j., and Agid, J., concur.

Author: Coleman

Thomas E. Miller appeals from the judgment and sentence entered against him for second degree rape, claiming that the court erred by relying upon unsupported findings of fact and conclusions of law to impose an exceptional sentence of 54 months. We remand for resentencing.

On September 22, 1989, Miller pleaded guilty to a charge of rape in the second degree, and a conviction was duly entered on November 7, 1989. A presentence investigation report indicated that the rape victim, C, had previously dated Miller, but had broken off the relationship in 1987, allegedly due to Miller's assaultive and violent behavior.

Because Miller continued to harass her, C obtained a protection order against him on July 17, 1989, but it was never properly served. Miller went to C's home on July 26,

1989, to retrieve his belongings and, as Miller later admitted to the community corrections officer (CCO) who compiled the presentence investigation report, he became angry and violent and "forced [C] against her will to have sex with [him]."

The presentence report further revealed that Miller's criminal history included a 1974 conviction for second degree assault and attempted rape. A 10-year maximum sentence was imposed on August 26, 1974, and was later reduced to a 5-year sentence after the conviction was amended to second degree assault. On September 29, 1978, Miller was released from prison after having received 26 months of sexual deviancy treatment at Western State Hospital during his incarceration. Miller also received an additional 18 months of follow-up services on an outpatient basis after his release.

Miller was the only source for the criminal history and treatment information presented in the presentence investigation report. The report specified that no psychological or psychosexual evaluation of Miller had been attempted and that his psychological records from Western State Hospital were unavailable when the sentencing report was completed.

During the sentencing hearing for Miller's 1989 second degree rape conviction, the State recommended the maximum standard sentence of 27 months plus no contact with the victim for 10 years, restitution, and community placement and treatment upon release. This recommendation was based upon a zero offender score and a seriousness level of 8. The defendant requested 21 months, the minimum time in the standard range. See RCW 9.94A.310 (Table 1).

Relying upon the presentence report, the court imposed an exceptional sentence of 54 months, twice the maximum time of the standard range. The court based its decision upon future dangerousness shown by "the defendant's history of similar acts, pattern, or trend of behavior" involving

the rape or attempted rape of a girl friend and the fact that Miller told the CCO that the current offense was very similar to the 1974 offense. The court noted that Miller "underwent 26 months of sexual deviancy treatment at Western State Hospital and was on the outpatient program for 18 months" which "clearly . . . was not effective with the defendant." Believing that Miller continued to present a threat to any girl friends he might have, the court concluded that the standard sentence was not commensurate with Miller's dangerousness "which still continues after substantial in-patient treatment for sexual deviancy."

In its conclusions of law, the court identified four reasons to justify imposing a sentence ...


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