Appeal from Superior Court of King County. Docket No: 93-1-06652-6. Date filed: 06/03/94. Judge signing: Hon. Ricardo Martinez.
Petition for Review Denied July 8, 1997,
Authored by Walter E. Webster. Concurring: H. Joseph Coleman, Ann L. Ellington. WE Concur
The opinion of the court was delivered by: Webster
WEBSTER, J. -- Hershey Grounds appeals his exceptional sentence for second degree murder. He argues that the trial court erred in determining that abuse of trust and deliberate cruelty supported an exceptional sentence. We agree and remand for sentencing at the top of the standard range.
Grounds and the victim, Ed Delatorre, met for the first time while drinking at the Sure Shot Tavern. They left the tavern together around midnight, stopped to purchase more beer, and went to Delatorre's home.
There, defendant stabbed Delatorre twelve times and stole his truck and some electronic equipment.
Grounds pleaded guilty to second degree murder and second degree theft. Although the standard range for the second degree murder count was 144 to 192 months, the trial Judge sua sponte imposed an exceptional sentence of 385 months. He based the exceptional sentence on abuse of trust and deliberate cruelty, including the excessive use of force for second degree murder.
Under the Sentencing Reform Act (SRA), a court must impose a standard range sentence unless it finds "substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.120(2). Review of an exceptional sentence entails a 3-step analysis. First, we examine whether the record supports the court's reasons for imposing an exceptional sentence. RCW 9.94A.210(4)(a). Second, we determine whether the stated reasons justify an exceptional sentence as a matter of law. RCW 9.94A.210(4)(a); State v. Hodges, 70 Wash. App. 621, 623, 855 P.2d 291 (1993), review denied, 124 Wash. 2d 1013, 879 P.2d 293 (1994). Third, we decide whether the court abused its discretion by imposing a "clearly excessive" sentence. RCW 9.94A.210(4)(b).
We begin by addressing the State's motion to concede error on abuse of trust as an aggravating factor. Courts typically examine the duration and degree of the relationship to determine whether the defendant held a position of trust. State v. Grewe, 117 Wash. 2d 211, 218, 813 P.2d 1238 (1991). A mere acquaintanceship between the defendant and victim is not sufficient to establish such a position. See State v. Stuhr, 58 Wash. App. 660, 663, 794 P.2d 1297 (1990) (defendant's status as guest in victim's home does not place him in position of trust), review denied, 116 Wash. 2d 1005, 803 P.2d 1309 (1991). Because Grounds and Delatorre were mere acquaintances, having met for the first time on the night of the crime, we accept the State's concession of error.
Deliberate cruelty to the victim is a statutory aggravating factor that justifies an exceptional sentence as a matter of law. RCW 9.94A.390(2)(a); State v. Scott, 72 Wash. App. 207, 214, 866 P.2d 1258 (1993), aff'd, State v. Ritchie, 126 Wash. 2d 388, 894 P.2d 1308 (1995). Thus, we need only ...