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Washington v. Smith

filed as amended.: May 28, 1996.

STATE OF WASHINGTON, RESPONDENT,
v.
KEVIN LAMONT SMITH, APPELLANT.



Superior Court County: King. Superior Court Cause No: 94-1-03252-2. Date filed in Superior Court: November 23, 1994. Superior Court Judge Signing: Richard Jones.

Written by: Agid, J., Concurred by: Ellington, J., Kennedy, A.c.j.

Author: Agid

AGID, J. -- Kevin Lamont Smith appeals his 100 year sentence for attempted first degree murder and first degree robbery, rape and kidnapping. He argues that the trial court erred when it imposed an exceptional sentence upward which is clearly excessive and based on factors that do not justify an exceptional sentence. Smith also argues that the court erred in failing to specify the length of the sentence imposed for each offense and failing to timely enter written findings of fact and conclusions of law. We hold that the record supports the grounds for and length of the sentence and that Smith was not prejudiced by the late entry of findings and conclusions. Although we agree with Smith that the trial court should identify the sentence it is imposing for each crime, the failure to do so here was harmless. Accordingly, we affirm.

FACTS

Shortly after 11:30 p.m. on May 7, 1994, 26-year-old C.F. was attacked by Kevin L. Smith and Remus G. Jordan on the street outside her residence on Capitol Hill in Seattle. Smith and Jordan, who were looking for cars to prowl, saw C.F. park her car and decided to "jack her." They ran up and grabbed her, held a nail file to her throat, and forced her into the back seat of her car. Smith drove the car to a secluded area where he got into the back seat with C.F. and forced her to disrobe. Smith forced her to perform fellatio while Jordan looked through C.F.'s purse and bags for money. Smith then drove to a gas station where Jordan bought cigarettes using the money he had

found. Smith later told police it was at this point that he decided to kill C.F. so she could not identify them later. Smith then drove south to a store where Jordan bought beer with the remainder of C.F.'s money. Throughout the abduction, C.F. pleaded for her life but was told to shut up and threatened with death if she did not.

Smith then drove to Kentridge High School where he asked Jordan to give him the screwdriver he had with him. Smith took the screwdriver, ordered C.F. out of the car, took her behind the building, and stabbed her nearly 30 times. There were 7 wounds in her buttock, 6 in her hip, 8 on her hands, 2 on her feet, 1 each in her side, chest, and neck, and 2 wounds in her head. One of the stab wounds to her head penetrated her skull and brain up to the handle of the screwdriver. When Smith returned to the car, he told Jordan he had "killed the bitch" so that she could not identify them and asked for a towel to wipe off his hands. Smith later cleaned the car to remove all evidence and left items belonging to C.F. which were in the car at his mother's home.

C.F. was found by a passerby on May 8, 1994, at approximately 5:30 a.m., unconscious and in critical condition. She suffered permanent brain damage, leaving her paralyzed on the right side of her body and impairing her cognitive and communicative skills to the extent that her physicians doubt she will ever again be able to live independently. C.F.'s difficulty in communicating also exacerbates the psychological and emotional trauma she continues to endure. C.F. is able to recall the entire assault up to point at which she lost consciousness, including trying to get up from the sidewalk where she was found after she was stabbed in the head but finding that her body was unable to respond.

Smith was arrested on May 16, 1994, and charged by amended information with attempted first degree murder and first degree kidnapping, robbery, and rape. He pleaded guilty to these charges on September 8, 1994, and a sentencing hearing was held on November 18, 1994. At

the sentencing hearing, C.F.'s family and friends addressed the court, describing the impact of the crimes on C.F. and her family. The court also viewed a videotape prepared for the hearing in which the victim's mother and various caregivers addressed the court and a doctor described the injuries to C.F.'s brain.*fn1 C.F. also addressed the court on the tape using drawings and pantomime to describe the terror she had experienced and the fear she continued to feel. The trial court listened to the oral remarks of the various individuals who appeared at the hearing, including Smith's allocution, and reviewed the certification of probable cause. The court then found that there were substantial and compelling reasons to impose an exceptional sentence upward and sentenced Smith to 100 years in prison. This appeal followed.

Discussion

Specific Sentence Imposed for Each Count

Smith first contends that the trial court abused its discretion by failing to specify the length of the sentence imposed for each current offense. Smith argues that it is impossible to determine from the record how the trial court arrived at the 100 year figure. We disagree.

First, the judgment and sentence lists 100 years as the "total confinement for all counts 1-4." Although it is true that this statement does not explain how the trial court arrived at the 100 year figure, it is not ambiguous in terms of stating the trial court's intention to impose a total sentence of 100 years for all four counts. Second, the written findings and conclusions consistently refer to: "A sentence of one hundred years under this cause number". (Italics ours.) Because all four counts were charged under the same cause number, the only possible interpretation is that the 100 year sentence was imposed for all four counts together.

Although neither the judgment and sentence nor the written findings and conclusions explain the basis on which the court arrived at the 100 year figure, the report of proceedings and the scoring sheet to which the court refers in its oral ruling make clear the basis for the court's decision. See In re LaBelle, 107 Wash. 2d 196, 219, 728 P.2d 138 (1986) (an appellate court may look to the oral decision of the trial court to clarify the basis of a written ruling). The scoring sheet anticipates that any sentence for counts 2 (kidnapping) and 3 (robbery) run concurrently with that for count 1 (attempted first degree murder), and that the sentence for count 4 (rape) run consecutively to the sentences for counts 1, 2, and 3. The standard range for count 1 is calculated as 195.75-260.25 months; the standard range for count 3 is calculated as 65-78 months; and the standard range for count 4 is calculated as 102-126 months. At the sentencing hearing, the State explained that the parties had stipulated that the crime of first degree kidnapping was encompassed within the scope of the other crimes of which Smith was convicted and therefore did not have a standard range and did not contribute to the offender score.*fn2

The trial court's written findings and conclusions, which include a finding that "an exceptional sentence of one hundred years is 3.1 times the high end of the standard ranges in this case," further support the conclusion that the basis on which the trial court arrived at the 100 year sentence is that described on the scoring form: 3.1 times the high end of the ...


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