State v. Collicott

• Decision Date: 27 April 1989
• Docket Number: No. 54915-0,54915-0
• Citation: 771 P.2d 1137,112 Wn.2d 399
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Eric L. COLLICOTT, Petitioner.

Page 399

112 Wn.2d 399

771 P.2d 1137

The STATE of Washington, Respondent, v. Eric L. COLLICOTT, Petitioner.

No. 54915-0.

Supreme Court of Washington En Banc.

April 27, 1989.

Reconsideration Denied June 28, 1989.

Julie A. Kesler, Washington Appellate Defender Ass'n, Seattle, for petitioner.

Seth R. Dawson, Snohomish County Prosecutor, Larry E. McKeeman, Deputy, Everett, for respondent.

UTTER, Justice.

Petitioner Eric L. Collicott seeks review of a Court of Appeals decision finding that his conviction for first degree burglary, first degree rape, and first degree kidnapping do not constitute the "same criminal conduct" for the purpose of determining his offender score under RCW 9.94A.360. The trial judge found that the offenses did constitute the same criminal conduct. We find the trial court's reasoning persuasive and reverse the decision of the Court of Appeals.

On December 12, 1985, petitioner pleaded guilty to first degree burglary under RCW 9A.52.020, first degree rape under RCW 9A.44.040, and first degree kidnapping under RCW 9A.40.020. As part of the plea, Mr. Collicott stipulated to the admissibility of the victim's statement, as well as her interview with a police detective, as material facts for the court to consider in sentencing. These documents provide us with a glimpse at the underlying facts of the case.

Eric Collicott broke into the Yokefellow Counseling Center (the "Center") in Lynnwood in the early morning hours of September 28, 1985. Mr. Collicott apparently began collecting electronic equipment inside the building. Sometime during this activity, he made a loud crashing noise.

This noise awoke the victim, sleeping in one of the Center's bedrooms. She had arrived earlier that night and had arranged with the Center's staff to spend the night there in preparation for doing work the next day. Half-awake, she walked out into the hallway to investigate and saw Mr. Collicott standing in front of an opened closet. She asked him who he was and what he was doing. Mr. Collicott appeared to be extremely intoxicated and gave an incoherent answer, so the victim led him to a nearby couch and sat him down. She thought he might have been one of the Center's residents.

The victim went to the front of the building to see if the door was open. She saw there a pile of electronic equipment, noticed that the front office had been burglarized, and tried to use the office phone to call the police. The phone did not work. The victim went back to the living room to a phone she knew was operative.

As she entered the living room, Mr. Collicott came from behind and hit her over the head with a table lamp. He showed her that he had a knife, which the victim later said looked as though it was taken from a kitchen. He grabbed her hair, led her into the bedroom, and ordered her to give him money and the keys to her car. He tied her hands and feet and gagged and blindfolded her. Mr. Collicott then went out of the room and loaded up the electronic gear into the victim's car.

Mr. Collicott returned to the bedroom and raped the victim. He then took her to the car, got into the driver's seat with the knife on the floor near him, and drove off. He told her that he was going to drive somewhere to get a gun. After arriving at this destination, Mr. Collicott left the victim in the car while he went inside. He took the keys with him. The victim remembered that she kept an extra car key in a magnetized container under the car. She worked her hands loose, got out and found the key, got in the driver's seat, and drove away as quickly as possible. She eventually was able to contact the police.

After Mr. Collicott's eventual arrest, the Snohomish County Prosecutor charged him with first degree burglary (count 1), first degree rape (count 2), and first degree kidnapping (count 3), all committed with a deadly weapon. Mr. Collicott pleaded guilty to all charges. In his plea, he made the following statement:

Counts I, II and III all occurred in Snohomish County during the early morning hours of 9-28-85. During commission of each of the crimes in Counts I, II, and III, I was armed with a kitchen knife which qualifies as a deadly weapon under 9.94A.125.

Count I: I unlawfully entered a dwelling--Yokefellow Center--with the intent to commit theft therein. While inside I assaulted [the victim] by striking and raping her.

Count II: After feloniously entering the dwelling described in Count I, I had sexual intercourse with [the victim] who was inside the dwelling, by forcible compulsion through physical force and restraints which prevented resistance. Afterwards, I intentionally kidnapped her.

Count III: After feloniously entering the building described in Count I and raping [the victim], as described in Count II, I intentionally abducted [the victim] by removing her from the dwelling and restraining her by threats of deadly force. I did this with the intent to facilitate commission of and flight from the burglary and rape.

Clerk's Papers, at 30-31.

Mr. Collicott argued before the trial court that the above counts all amounted to the same criminal conduct for the purpose of determining his offender score. The judge agreed, but erroneously calculated the offender score for each offense by taking the other two into account as one other current offense:

Counts II & III count as one crime with regard to Count I.

Counts I & III count as one crime with regard to Count II.

Counts I & II count as one crime with regard to Count III.

Clerk's Papers, at 2. The trial court sentenced Mr. Collicott to 72 months for count 1 and 154 months each for counts 2 and 3, to serve concurrently. Both parties appealed the sentencing decision. The Court of Appeals, Division One, citing State v. Dunaway, 09 Wash.2d 207, 743 P.2d 1237 (1987), held that the three counts were not the same criminal conduct, that each offense was completed before the subsequent ones began. The Court of Appeals also found that the Center and the rape/kidnapping victim constituted two separate victims, causing the burglary to be separate from the other crimes. Mr. Collicott sought review of this decision. We took review of the case to resolve conflicts between the decision of the Court of Appeals and Dunaway.

Petitioner points out the conflicts with our Dunaway rule. He argues that the Court of Appeals wrongly considered the burglary to be completed before the rape. He contends this is so because the prosecutor partly based the first degree burglary charge on Mr. Collicott's assault and rape of the building's occupant. In order to satisfy all the elements of first degree burglary, the criminal activity encompassed in the offense had to include the rape. Otherwise, petitioner argues, the offense would have been burglary in the second degree. Petitioner also argues that the first degree burglary--depending on the assault and rape for its definition--could only have had one victim: the woman who was raped. Last, petitioner claims that the Court of Appeals wrongly held that the kidnapping did not facilitate the rape or burglary or flight therefrom. Petitioner maintains that he specifically pleaded guilty to first degree kidnapping with intent to facilitate the two other felonies.

I

Matters of sentencing traditionally have been within a trial judge's discretion. The Washington Sentencing Reform Act of 1981 altered this traditional formula, but the Legislature did not do away with judicial discretion: the SRA "structures, but does not eliminate, discretionary decisions affecting sentences ..." RCW 9.94A.010. Thus, within the SRA's guidelines, a trial judge's discretion in sentencing matters remains intact. Cf. State v. Ammons, 105 Wash.2d 175, 181, 713 P.2d 719, 718 P.2d 796 (1986). On matters within SRA guidelines, an appellate court will not reverse a trial judge's sentencing decision within his discretion unless it finds a clear abuse of that discretion or misapplication of the law. State v. McAlpin, 108 Wash.2d 458, 467, 740 P.2d 824 (1987) (exceptional sentence excessive only if discretion abused); State v. Oxborrow, 106 Wash.2d 525, 530, 723 P.2d 1123 (1986) (same); State v. Tunell, 51 Wash.App. 274, 284, 753 P.2d 543 (1988) (same).

We give similar deference to a judge when he or she considers the factors which determine a defendant's offender score. The determination of what constitutes the same criminal conduct is a necessary inquiry in assessing the offender score. We uphold the trial court's decision because we find neither a clear abuse of discretion nor a misapplication of the law. The trial judge's decision also serves as an illustration of the correct application of the principles we enunciated in State v. Dunaway, supra.

II

In Dunaway, this court developed a test, largely based on State v. Edwards, 45 Wash.App. 378, 725 P.2d 442 (1986), to determine if accompanying crimes encompass the same criminal conduct. In Dunaway, we stated that separate convictions will be treated as one for sentencing purposes if they arise out of the same course of conduct and one criminal event is intimately related to the other. 109 Wash.2d at 214, 743 P.2d 1237. See also State v. Collins, 110 Wash.2d 253, 751 P.2d 837 (1988); State v. Adcock, 36 Wash.App. 699, 706, 676 P.2d 1040, review denied, 101 Wash.2d 1018 (1984). As part of this determination,

trial courts should focus on the extent to which the criminal intent, as objectively viewed, changed from one crime to the next. As it did in Edwards, part of this analysis will often include the related issues of whether one crime furthered the other and if the time and place of the two crimes remained the same.

Dunaway, at 215, 743 P.2d 1237. We developed one exception to this general principle: if different crimes at issue involved different victims, then a court must treat them as separate in calculating the offender score.

Our application of the test in Dunaway shows the contours of the correct inquiry. In Dunaway, we analyzed...