Appeal from Superior Court, Skagit County. 92-1-00446-1. Honorable George E. McIntosh, Judge.
As Corrected May 22, 1997.
Authored by Richard B. Sanders. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Charles W. Johnson, Barbara A. Madsen, Gerry L. Alexander, Philip A. Talmadge.
The opinion of the court was delivered by: Sanders
SANDERS, J. The question in this case is whether the sentencing court committed reversible error by failing to properly calculate the standard range sentence before imposing an exceptional sentence. We conclude it did err, reverse the contrary holding by the Court of Appeals, vacate the sentence, and remand for resentencing following correct calculation of the standard ranges.
On September 1, 1993 the State charged Larry Parker with one count of first degree rape of a child and two counts of first degree child molestation for sexually abusing his ex-girlfriends children. The information alleged Parker committed the crimes sometime between 1987 and 1991.
At trial, evidence was adduced that Parker had committed the acts at various times throughout the charging period. During closing, the State argued to the jury it could convict based on any of the alleged incidents during the charging period. The jury returned guilty verdicts for count 1 (rape of a child) and count 2 (child molestation). *fn1 The jury was not asked to and did not specify when during the five-year charging period any of the acts occurred. *fn2
During the fourth year of the charging period the Legislature amended the Sentencing Reform Act of 1981 (SRA), significantly increasing the standard ranges for both crimes. The sentencing court, however, used the higher ranges even though the jury never specified when during the five-year period the acts occurred. Using the SRA as amended the trial court calculated Parkers standard range for count 1 at 102 to 136 months and for count 2 at 67 to 89 months. The State recommended a sentence at the top of each range, 136 months for count 1 and 89 months for count 2, to run consecutively, as an exceptional sentence, for a total confinement of 225 months. The sentencing court also considered a presentence report prepared by the community corrections officer which recommended an exceptional sentence of 204 months confinement. The sentencing Judge went midway between the two and imposed 132 months for count 1 and 84 months for count 2, very close to the top end of each standard range, and ran the two consecutively, as an exceptional sentence, for 216 months total confinement. *fn3
Parker appealed the sentence, arguing the standard range was incorrect because the sentencing court used the heavier standard range penalties without requiring the State to prove the acts occurred after the date they became effective. Parker asserted the error was reversible and sought remand for resentencing in accordance with the correct standard range. *fn4
The Court of Appeals agreed the standard range may have been incorrect but affirmed the sentence, characterizing the standard range as irrelevant and holding any error in the standard range as harmless. State v. Parker, 82 Wash. App. 130, 131-32, 139, 916 P.2d 467, review granted, 130 Wash. 2d 1007, 928 P.2d 416 (1996). We granted review on the sole issue of whether remand for resentencing was required in light of the incorrect standard range.
SENTENCING REFORM ACT OF 1981
The Sentencing Reform Act of 1981 (SRA) imposes a regime of structured discretion. RCW 9.94A.010; State v. Shove, 113 Wash. 2d 83, 88-89, 776 P.2d 132 (1989) (A principal purpose of the SRA is to establish guidelines for sentencing Judges discretion, thereby making the exercise of that discretion more principled . . . .). The SRA contemplates the sentencing court will, in most cases, impose a standard range rather than an exceptional sentence. RCW 9.94A.120(1). *fn5 Indeed, RCW 9.94A.370 refers to the standard range as the presumptive sentence. The presumptive standard range sentence is a legislative determination of the applicable punishment range for the crime as ordinarily committed.
The sentencing court may impose a sentence outside the standard sentence range if it finds substantial and compelling reasons to justify an exception. RCW 9.94A.120(2). However, when imposing an exceptional sentence the court must first consider the presumptive punishment as legislatively determined for an ordinary commission of the crime before it may adjust it up or down to account for the compelling nature of the aggravating or mitigating circumstances of the particular case. RCW 9.94A.390. *fn6 See State v. Brown, 60 Wash. App. 60, 69, 802 P.2d 803 (1990) (It is obvious from the wording of the statute that the sentencing court must first determine the standard range before deciding to impose an exceptional sentence.), review denied, 116 Wash. 2d 1025, 812 P.2d 103 (1991), overruled on other grounds in part by State v. Chadderton, 119 Wash. 2d 390, 832 P.2d 481 (1992); State v. Worl, 129 Wash. 2d 416, 918 P.2d 905 (1996) (Imposition of an exceptional sentence is directly related to a correct determination of the standard range. That determination can be made only after the offender score is correctly calculated.) (quoting State v. Collicott, 118 Wash. 2d 649, 660, 827 P.2d 263 (1992) (Collicott II)). See David Boerner, Sentencing in Washington: A ...