State v. Crow
| Decision Date | 25 July 2017 |
| Docket Number | 48859-1-II |
| Parties | STATE OF WASHINGTON, Respondent, v. TOMMY LEE CROW, JR., Appellant. |
| Court | Washington Court of Appeals |
UNPUBLISHED OPINION
Tommy Lee Crow Jr. appeals his aggravated exceptional sentence following a remand for resentencing. He argues (1) the resentencing court erred by failing to enter findings of fact regarding why deliberate cruelty justified his aggravated exceptional sentence, (2) the resentencing court erred by wrongly relying on an aggravator previously rejected by this court, [1]and (3) his aggravated exceptional sentence is clearly excessive. We affirm.[2]
In 2009, a jury found Crow guilty of two counts of second degree murder involving the deaths of David Miller and Norman Peterson and one count of second degree arson. The jury also found the Good Samaritan sentencing aggravator for murdering Miller in retaliation for Miller reporting a friend's assault to law enforcement. The jury further found the deliberate cruelty sentencing aggravator for Peterson's murder for striking Peterson with a tree branch, putting him in a choke hold until he was incapacitated, and then throwing his body into a campsite fire.
For Miller's murder, the trial court imposed a 360-month exceptional sentence based on the Good Samaritan aggravating factor. For Peterson's murder, the trial court imposed a 300-month exceptional sentence based on the deliberate cruelty aggravating factor. Because these were serious violent offenses, the trial court ordered the two sentences to be served consecutively, resulting in a total sentence of 660 months imprisonment for the two murder convictions.[3] We affirmed the convictions in an unpublished opinion.[4]
Crow then filed a personal restraint petition. Crow, 187 Wn.App. at 420. In 2015, we granted Crow's personal restraint petition in part. Crow, 187 Wn.App. at 417. We held that the evidence was insufficient to support the Good Samaritan sentencing aggravator. Id. at 424. Thus, we vacated Crow's sentence on both murder convictions and remanded for resentencing. Id. at 426.[5]
At the resentencing hearing, the court heard from Miller and Peterson's family members. The prosecutor recommended a total sentence of 600 months. Regarding Miller's murder, the prosecutor stated that the original sentencing judge commented that Miller acted with "extraordinary bravery" and that Miller "was killed in retaliation for being the snitch." Verbatim Report of Proceedings (VRP) (Apr. 21, 2016) at 12. The prosecutor then stated, "And so those circumstances considering, in addition to the facts of the crime, the State believes are still something for this Court to consider." VRP (Apr. 21, 2016) at 12. The prosecutor cautioned though that the retaliation should not be considered to support "an exceptional sentence." VRP (Apr. 21, 2016) at 12. The prosecutor clarified, "That's not allowed for under the law." VRP (Apr. 21, 2016) at 12. The prosecutor then stated that the "aggravators in the facts of the case" justify a sentence in "the top of the [sentencing] range." VRP (Apr. 21, 2016) at 13. Crow's standard sentencing range for the Miller murder was 165-265 months.
Defense counsel agreed that the court should resentence Crow to the high end of 265 months for the Miller murder. Defense counsel stated that he agreed with the prosecutor that "the factual basis that existed at the time for the jury to consider the good samaritan aggravator would justify a top-end-of-the-range sentence." VRP (Apr. 21, 2016) at 43. Defense counsel noted that the resentencing court did not have the "option" on the Miller murder to impose an exceptional sentence. VRP (Apr. 21, 2016) at 45. Defense counsel requested the original 80 month exceptional sentence on the Peterson murder based on the jury's deliberate cruelty finding.
The resentencing court imposed a standard range sentence of 265 months for the Miller murder and an aggravated exceptional sentence of 335 months for the Peterson murder (220 months plus 115 months for the aggravating factor of deliberate cruelty) to be run consecutively for a total sentence of 600 months. The resentencing court entered findings of fact and conclusions of law for an exceptional sentence. The resentencing court found, "[t]he defendant's conduct during the commission of this crime manifested deliberate cruelty to the victim, Norman Peterson." Clerk's Papers (CP) at 215. The resentencing court then concluded, "There are substantial and compelling reasons to impose an exceptional sentence." CP at 215.
During the resentencing hearing, the court stated that the crimes were "completely unacceptable, and heinous" and that the two victims had been described as "'brave, courageous'" and that the court would "give the additional label of 'heroes.'" VRP (Apr. 21, 2016) at 51. The resentencing court also stated that it was "bound by" the Court of Appeals decision to not allow one of the two aggravating factors. VRP (Apr. 21, 2016) at 52. The resentencing court continued:
[T]he record reflects that the one aggravating factor fully supports adding 115 months to Count 2, specifically, and I believe that that is based upon the specific findings that [the original sentencing judge] put on the record orally and in writing that one of the aggravating factors, either one, would justify the exceptional sentence upward.
VRP (Apr. 21, 2016) at 52. Crow appeals.
Sentences must generally fall within the standard sentence range established by the Sentencing Reform Act of 1981. RCW 9.94A.505(2)(a)(i). The court may impose a sentence outside the standard range for an offense if it finds "that there are substantial and compelling reasons justifying an exceptional sentence." RCW 9.94A.535. An aggravated exceptional sentence is appropriate when certain aggravating factors have been determined. RCW 9.94A.535(2), (3).
We review (1) whether the record supports the finding on the aggravating circumstances under the clearly erroneous standard, (2) whether, as a matter of law, the reasons justify an exceptional sentence under a de novo standard, and (3) whether the sentence is clearly excessive or too lenient under an abuse of discretion standard. State v. Law, 154 Wn.2d 85, 93, 110 P.3d 717 (2005).
Crow contends that the resentencing court erred by not entering specific findings of fact to support why the deliberate cruelty aggravator justified his exceptional sentence for the Peterson murder. We disagree.
"Whenever an exceptional sentence is imposed, 'the court shall set forth the reasons for its decision in written findings of fact and conclusions of law.'" State v. Shemesh, 187 Wn.App. 136, 148, 347 P.3d 1096, review denied, 184 Wn.2d 1007 (2015) (quoting RCW 9.94A.535). Remand is required when a trial court fails to enter written findings of fact and conclusions of law to support an exceptional sentence. State v. Friedlund, 182 Wn.2d 388, 395, 341 P.3d 280 (2015).
Our legislature has specified that a finding of deliberate cruelty justifies an exceptional sentence. RCW 9.94A.535(3)(a). Moreover, the factual basis for a finding of deliberate cruelty is within the province of the jury. Blakely v. Washington, 542 U.S. 296, 301-04, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004); RCW 9.94A.537(3). If the jury finds the alleged aggravating circumstances beyond a reasonable doubt, the trial judge is bound by the jury's finding and left "only with the legal conclusion of whether the facts alleged and found were sufficiently substantial and compelling to warrant an exceptional sentence." State v. Suleiman, 158 Wn.2d 280, 290-91, 143 P.3d 795 (2006).
Here, the resentencing court stated, "[T]he record reflects that the one aggravating factor fully supports adding 115 months to Count 2." VRP (Apr. 21, 2016) at 52. The resentencing court then entered findings of fact and conclusions of law to support its exceptional sentence. (CP 215) The resentencing court found, "[t]he defendant's conduct during the commission of this crime manifested deliberate cruelty to the victim, Norman Peterson." CP at 215. This was based on the jury's special finding during Crow's trial. (Crow, 187 Wn.App. at 418) The resentencing court then concluded, "There are substantial and compelling reasons to impose an exceptional sentence." CP at 215.
The jury made the required finding and the resentencing court made the required legal conclusion. Accordingly, the sentencing court's findings and conclusions satisfy RCW 9.94A.535 and are sufficient to support the aggravated exceptional sentence for the Peterson murder.
Crow next contends the resentencing court erred by considering the Good Samaritan sentencing aggravator previously disapproved by this court to increase the exceptional sentence for the Peterson murder. We disagree.
As previously discussed, the jury decides aggravating factors that support an exceptional sentence. Blakely, 42 U.S. at 301-04. However, the aggravating factors must be supported by sufficient evidence. State v. Stubbs, 170 Wn.2d 117, 123, 240 P.3d 143 (2010). In re Crow, we held, "insufficient evidence supports the good Samaritan aggravator because Miller's act of reporting [a prior assault] to the police over a week after it occurred while admirable, did not make Miller a good Samaritan." 187 Wn.App. at 424. We then remanded for resentencing. At the resentencing hearing, the court heard from both Miller and Peterson's family members. During the resentencing hearing, the court stated that the crimes were "completely unacceptable, and heinous" and that the two victims had been described as "'brave'" and "'courageous'" and that...
To continue reading
Request your trial