State v. Dunaway
| Decision Date | 08 October 1987 |
| Docket Number | Nos. 53482-9,53574-4,s. 53482-9 |
| Citation | 109 Wn.2d 207,743 P.2d 1237 |
| Parties | STATE of Washington, Petitioner, v. James T. DUNAWAY, Respondent. STATE of Washington, Petitioner, v. Raymond Patrick GREEN Respondent. STATE OF Washington, Petitioner, v. John Clarence FRANKLIN, Respondent. |
| Court | Washington Supreme Court |
Note: Order Supplemented by 749 P.2d 160.
Seth Dawson, Snohomish County Prosecutor, S. Aaron Fine, Deputy, Everett, Donald C. Brockett, Spokane County Prosecutor, Clark D. Colwell, Deputy, Spokane, for petitioner.
Spokane Public Defender, Jim Kane, Asst., Spokane, for Green.
Murphy, Bantz & Bury, Francis Conklin, Spokane, for Franklin.
These three cases involve interpretation of the Sentencing Reform Act of 1981 (SRA) relating to the calculation of a defendant's standard sentence range. One of the factors in that calculation is the defendant's offender score, which measures the length and severity of his criminal history. The SRA, RCW 9.94A, provides that separate crimes encompassing "the same criminal conduct" must be treated as one crime in determining criminal history. RCW 9.94A.400(1)(a). The cases currently before this court present a variety of factual settings to which this statute must be applied. In both Green and Franklin, the defendants committed armed robbery and attempted to murder their victims. At issue in both of these cases is if the armed robbery and the attempted murder encompassed the same criminal conduct. In Dunaway, the defendant kidnapped two women in order to rob them. At issue is if the two robberies and the two kidnappings all encompassed the same criminal conduct. The Court of Appeals held in all three cases that the separate crimes did encompass the same criminal conduct and, therefore, that they should be treated as one crime for sentencing purposes. We reverse the Court of Appeals in each instance.
Between 3 and 3:30 a.m. on August 13, 1984, Raymond Patrick Green entered a Winchell's Donut Shop in Spokane. Green pointed a gun at the employee and told him to open the cash register. The employee gave Green the money--$31. Green then told the employee to walk to the back of the store. As they were walking, Green hit the employee on the head with his gun, knocking him to the floor. Green then shot him once in the back. According to the employee's testimony, Green started to leave, and as he began walking around the corner the employee yelled for help. Green returned and again shot the employee in the back. 1 Green then ran out of the store.
A jury convicted Green of first degree robbery and attempted first degree murder. The sentencing judge concluded that these two crimes did not encompass the same criminal conduct, and accordingly used each of the crimes as criminal history in arriving at the other crime's standard range. This generated a standard range of 203.25 to 270.75 months 2 for the attempted first degree murder charge. The trial judge then imposed an exceptional sentence of 480 months, doubling the standard range. Green also received a concurrent 50-month sentence on the robbery charge.
The Court of Appeals reversed the sentence, holding that the robbery and the attempted murder constituted the same criminal conduct. As to the exceptional sentence, the Court of Appeals instructed the trial court on resentencing to consider recent Supreme Court cases on the SRA. The Court of Appeals also held that the prosecutor's conduct during closing argument was not reversible error. The parties obtained review of all these holdings.
John Clarence Franklin entered a Doerner's Pizza Parlor in Spokane at approximately 4 p.m. on November 20, 1984. The only other person present was an employee behind the counter. Franklin showed her a knife and demanded the money from the cash register--something less than $100. After receiving the money, Franklin told the employee to get on her knees and to place her hands behind her back. Franklin then stabbed her twice in the back. The employee screamed and escaped out a sliding door.
A jury found Franklin guilty of first degree robbery and attempted first degree murder. The sentencing judge concluded that these two crimes did not encompass the same criminal conduct, and accordingly used each of the crimes as criminal history in arriving at the other's standard range. Franklin received concurrent sentences at the high end of the standard ranges, 411 months for the attempted murder and 144 months for the robbery.
The Court of Appeals reversed the sentence, holding that the two crimes encompassed the same criminal conduct. The State obtained review of this decision.
James T. Dunaway stated in his plea of guilty that he committed the following acts:
On March 3, 1986, I went to the Alderwood Mall. I got into a car where Ora Buck and Grace Johnson were present. I showed them the gun and, under threat, asked them to drive toward Seattle. I told them to give me the cash that they had on them. I took some money from each. When we got to Seattle, I told one of the women to go inside the Rainier bank in the University District and to get some more money for me. When she did not return for some time, I told the other Lady to move over and let me drive. We drove to somewhere in Seattle and I got out of the car.
Dunaway pleaded guilty to two counts of first degree kidnapping and two counts of first degree robbery. The sentencing judge found that all four crimes encompassed the same criminal conduct. Accordingly, the standard ranges were 41 to 54 months for each robbery count and 86 to 106 months for each kidnapping count. The court imposed concurrent sentences at the bottom end of the range.
The State appealed the sentence. The Commissioner for the Court of Appeals affirmed and the Court of Appeals denied the State's motion to modify his decision. The State then obtained review in this court.
Under the SRA, the first step in determining the length of a sentence is to calculate the appropriate standard range. Generally, a defendant is to be sentenced within this standard range unless "substantial and compelling reasons" justify a different sentence. Former RCW 9.94A.122(2). The standard range is based on two factors: (1) the severity of the crime for which the defendant is being sentenced ("offense seriousness level"), and (2) the length and seriousness of the defendant's criminal history ("offender score"). RCW 9.94A.350-.370. The defendant's offender score is computed from his criminal history, including prior and current convictions. RCW 9.94A.400(1)(a). At issue in the present cases is how related convictions are used in calculating the offender score.
At the time of the sentencings involved in these cases, RCW 9.94A.400(1)(a) explained the analysis of criminal history as follows:
Except as provided in (b) of this subsection [not applicable in the current cases], whenever a person is convicted of two or more offenses, the sentence range for each offense shall be determined by using all other current and prior convictions as criminal history. All sentences so determined shall be served concurrently. Separate crimes encompassing the same criminal conduct shall be counted as one crime in determining criminal history.
(Italics ours.) 3
The focus of this opinion concerns the interpretation of the last sentence quoted above. This language was first dealt with in State v. Edwards, 45 Wash.App. 378, 380-82, 725 P.2d 442 (1986). There, a passenger in a car pulled a gun on the driver. The driver yelled for help, and a man approached the car to assist but retreated when the passenger waved the gun at him. The passenger was convicted of kidnapping the driver and of assaulting the rescuer. The Court of Appeals held that the kidnapping and the assault encompassed the same criminal conduct.
[W]e find that Edwards' actions encompassed the same criminal conduct. The kidnapping of the supervisor and the assault on the paramedic were intimately related; there was no substantial change in the nature of the criminal objective. The kidnapping was continuing and still in progress at the time the assault occurred. Moreover, the assault was committed in furtherance of the kidnapping.
State v. Edwards, supra at 382, 725 P.2d 442.
The Edwards court based this analysis on cases interpreting the Juvenile Justice Act of 1977 (JJA), RCW 13.40. Under the JJA's calculation of a juvenile's criminal history separate convictions are treated as one if they arise out of the "same course of conduct". RCW 13.40.020(6)(a). This phrase has been interpreted to mean: "[a] criminal event which is intimately related or connected to another criminal event". State v. Adcock, 36 Wash.App. 699, 706, 676 P.2d 1040, review denied, 101 Wash.2d 1018 (1984). Another JJA case has held that the necessary intimate relationship between criminal events is met only if there is "no substantial change in the nature of the criminal objective." State v. Calloway, 42 Wash.App. 420, 423-24, 711 P.2d 382 (1985). This test is an objective one, not dependent on the juvenile's subjective intent. Calloway, at 424, 711 P.2d 382; State v. Hayes, 46 Wash.App. 684, 687, 732 P.2d 168 (1987); State v. Huff, 45 Wash.App. 474, 478, 726 P.2d 41 (1986).
Three recent Court of Appeals decisions have followed Edwards in using this objective intent analysis in interpreting the SRA's "same criminal conduct" language. See State v. Boze, 47 Wash.App. 477, 735 P.2d 696 (1987); State v. King, 47 Wash.App. 38, 733 P.2d 568 (1987); State v. Rienks, 46 Wash.App. 537, 731 P.2d 1116 (1987). We find this approach persuasive, 4 especially in light of evidence that the Washington State Sentencing Guidelines Commission intended this interpretation to be used. 5 Therefore, in deciding if crimes encompassed the same criminal conduct, trial courts should focus on the extent...
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