State v. Graciano

• Citation: 176 Wash.2d 531,295 P.3d 219
• Decision Date: 31 January 2013
• Docket Number: No. 86530–2.,86530–2.
• Court: United States State Supreme Court of Washington
• Parties: STATE of Washington, Respondent, v. Julio Cesar Aldana GRACIANO, Petitioner.

176 Wash.2d 531

295 P.3d 219

STATE of Washington, Respondent,

v.Julio Cesar Aldana GRACIANO, Petitioner.

No. 86530–2.

Supreme Court of Washington,

En Banc.

Argued May 24, 2012.

Decided Jan. 31, 2013.

Thomas Michael Kummerow, Washington Appellate Project, Seattle, WA, for Petitioner.

Thomas Charles Roberts, Margo Martin, Pierce County Prosecuting Attorney, Tacoma, WA, for Respondent.

STEPHENS, J.

[176 Wash.2d 533]¶ 1 We have been asked to resolve conflicting authority on which standard of review applies to a sentencing court's determination of “same criminal conduct” under RCW 9.94A.589(1)(a). The Court of Appeals, Division Two, reviewed this determination de novo, adopting the reasoning of Division Three in State v. Torngren, 147 Wash.App. 556, 196 P.3d 742 (2008). The court in Torngren acknowledged a long line of precedent stating the proper standard is abuse of discretion but held that a de novo standard “seem[s] more appropriate.” Id. at 562, 196 P.3d 742. We disagree. Today, we reaffirm that determinations of same criminal conduct are reviewed for abuse of discretion or misapplication of law. Because the sentencing court here neither abused its discretion nor misapplied the law, we reverse the Court of Appeals.

IBACKGROUND

¶ 2 Julio Cesar Aldana Graciano was charged by amended information with four counts of first degree rape of a child and two counts of first degree child molestation relatingto his cousin's daughter, E.R. Clerk's Papers (CP) at 62–64. He was also charged with one count of first degree child molestation relating to his cousin's son, J.R. CP at 64.

¶ 3 At trial, nine-year-old E.R. testified about the events that unfolded when Graciano came to live with her family for several months at a time. She testified to four incidents of rape, which she described as occurring in the area between the kitchen and living room, Verbatim Transcript of Proceedings (Dec. 2, 2009), at 230, 233, in her bedroom, id. at 237–38, 196 P.3d 742, in the kitchen, id. at 238–39, 196 P.3d 742, and on the couch, id. at 252, 196 P.3d 742.

[176 Wash.2d 534]¶ 4 E.R. also testified that Graciano touched her upstairs in the living room, grabbing her hand and making her touch his exposed penis. Id. at 236, 196 P.3d 742. E.R.'s testimony was not clear on how many times she was molested. Compare id. at 254, 196 P.3d 742 (stating she was on the couch with her uncle two times), with id. at 258–59, 196 P.3d 742 (admitting that these incidents happened more than a couple times).

¶ 5 The jury was instructed that a guilty verdict requires unanimous agreement on which act was proved beyond a reasonable doubt. See State v. Petrich, 101 Wash.2d 566, 572, 683 P.2d 173 (1984); CP at 77. The jury was further instructed that the acts constituting each count must be separate and distinct from one another. CP at 77, 81–84, 87–88. The jury found Graciano guilty of the four counts of first degree child rape and two counts of first degree child molestation relating to E.R. CP at 93–98. The jury found Graciano not guilty of the molestation charge relating to J.R. CP at 99.

¶ 6 At sentencing, defense counsel argued the crimes should be considered the “same criminal conduct” under RCW 9.94A.589(1)(a) for purposes of calculating Graciano's offender score. Sentencing Verbatim Report of Proceedings (Jan. 22, 2010) at 3. The court disagreed, holding that there “was certainly sufficient evidence for each and every one of the counts to be separate and distinct.” Id. at 6. The court sentenced Graciano in accordance with its ruling.

¶ 7 Graciano appealed on a number of grounds, including that his convictions constituted the same criminal conduct because they involved the same victim, same criminal intent, and same time and place. On that issue, the Court of Appeals reviewed the sentencing court's determination de novo. See State v. Aldana Graciano, noted at 163 Wash.App. 1014, 2011 WL 3684814 (2011).

¶ 8 In conducting a de novo review, the court found that Graciano had the same criminal intent of present sexual gratification when he molested and raped E.R. Graciano, slip op. at 8–9. While the court expressed confidence that each of the four rapes was separate from the others, it noted the record was unclear as to whether Graciano raped E.R. on the living room couch and twice molested her in a single incident or on different occasions. Id. at 9. Because the record did not establish these incidents were separate, the court held that the child molestation convictions and one of the child rape convictions constituted the same criminal conduct. Id. The court remanded for resentencing consistent with this holding. In all other respects, the Court of Appeals affirmed the trial court's judgment.

¶ 9 Both Graciano and the State sought review by this court. We granted review only on the issue of what standard of review applies to a trial court's determination of same criminal conduct.

IIANALYSIS

¶ 10 Today we reaffirm our precedent, holding that determinations of same criminal conduct are reviewed for abuse of discretion or misapplication of law. The Court of Appeals erroneously applied a de novo standard of review and in doing so, inappropriately placed the burden of proof on the State. Applying the correct standard, we hold that the sentencing court neither abused its discretion nor misapplied the law in refusing to treat Graciano's crimes as part of the same criminal conduct.

Appellate Courts Review Determinations of Same Criminal Conduct for Abuse of Discretion or Misapplication of Law

¶ 11 A determination of “same criminal conduct” at sentencing affects the standard range sentence by altering the offender score, which is calculated by adding a specified number of points for each prior offense. RCW 9.94A.525. For purposes of this calculation, current offenses are treated as prior convictions. RCW 9.94A.589(1)(a). However, “if the court enters a finding that some or all of the current offenses encompass the same criminal conduct then those current offenses shall be counted as one crime.” Id.

¶ 12 Crimes constitute the “same criminal conduct” when they “require the same criminal intent, are committed at the same time and place, and involve the same victim.” Id. Deciding whether crimes involve the same time, place, and victim often involves determinations of fact. In keeping with this fact-based inquiry, we have repeatedly observed that a court's determination of same criminal conduct will not be disturbed unless the sentencing court abuses its discretion or misapplies the law. E.g., State v. Elliott, 114 Wash.2d 6, 17, 785 P.2d 440 (1990) (affirming the petitioner's sentence where the “same criminal conduct” determination involved “neither a clear abuse of discretion nor a misapplication of the law”); State v. Burns, 114 Wash.2d 314, 317, 788 P.2d 531 (1990) (noting the same criminal conduct determination will not be disturbed unless an appellate court “finds a clear abuse of discretion or misapplication of the law”); State v. Maxfield, 125 Wash.2d 378, 402, 886 P.2d 123 (1994) (“The trial court's determination whether two offenses require the same criminal intent is reviewed by this court for abuse of discretion or misapplication of the law.”); State v. Porter, 133 Wash.2d 177, 181, 942 P.2d 974 (1997) (“An appellate court will reverse a sentencing court's decision only if it finds a clear abuse of discretion or misapplication of the law.”); State v. Williams, 135 Wash.2d 365, 367, 957 P.2d 216 (1998) (framing the issue as whether “the sentencing court abuse[d] its discretion by concluding that charges ... did not constitute the same criminal conduct”); State v. Tili, 139 Wash.2d 107, 122, 985 P.2d 365 (1999) (“ ‘A trial court's determination of what constitutes the same criminal conduct for purposes of calculating an offender score will not be reversed absent an abuse of discretion or misapplication of the law.’ ” (quoting State v. Walden, 69 Wash.App. 183, 188, 847 P.2d 956 (1993))); State v. Haddock, 141 Wash.2d 103, 110, 3 P.3d 733 (2000) (“[A]n appellate court ... will reverse a sentencing court's determination of ‘same criminal conduct’ only on a ‘clear abuse of discretion or misapplication of the law.’ ” (quoting Elliott, 114 Wash.2d at 17, 785 P.2d 440)); State v. French, 157 Wash.2d 593, 613, 141 P.3d 54 (2006) (“A trial court's determination of what constitutes the same criminal conduct will not be disturbed absent an abuse of discretion or misapplication of the law.”); State v. Mutch, 171 Wash.2d 646, 653, 254 P.3d 803 (2011) (“We review the ‘trial court's determination of what constitutes the same criminal conduct [for] abuse of discretion or misapplication of the law.’ ” (alteration in original) (internal quotation marks omitted) (quoting Tili, 139 Wash.2d at 122, 985 P.2d 365)).

¶ 13 While acknowledging such precedent, the Court of Appeals in this case “f[ou]nd this standard unpersuasive” and applied a de novo standard. Graciano, slip op. at 8 n. 3. In doing so, it relied on Torngren, a case in which Division Three of the Court of Appeals decided a de novo standard “seem[s] more appropriate” for reviewing a determination of same criminal conduct. 147 Wash.App. at 562, 196 P.3d 742.¹ Departure from the settled “abuse of discretion or misapplication of law” standard is unwarranted, and we disaffirm any suggestion that determinations of same criminal conduct are appropriately reviewed de novo.

¶ 14 Instead, we review the sentencing court's determination of Graciano's criminal conduct for abuse of discretion or misapplication of law. Under this standard, when the record supports only one conclusion on whether crimes constitute the “same criminal conduct,” a sentencing court abuses its discretion in arriving at a contrary result. See State v. Rodriguez, 61 Wash.App. 812, 816, 812 P.2d 868 (1991). But where the record adequately supports either conclusion, the matter lies in the court's discretion. Whether the record “supports” a...