State v. Holyoak

• Citation: 49 Wn.App. 691,745 P.2d 515
• Decision Date: 22 October 1987
• Docket Number: No. 7722-5-III,7722-5-III
• Parties: STATE of Washington, Respondent, v. Allen Lee HOLYOAK, Appellant.
• Court: Court of Appeals of Washington

Page 691

49 Wn.App. 691

745 P.2d 515

STATE of Washington, Respondent, v. Allen Lee HOLYOAK, Appellant.

No. 7722-5-III.

Court of Appeals of Washington Division 3, Panel Two.

Oct. 22, 1987.

Review Denied Feb. 1, 1988.

Lewis Schrawyer, Spokane, for appellant.

Clark Colwell, Spokane, for respondent.

MUNSON, Judge.

Allen L. Holyoak appeals the court's imposition of an exceptional sentence after he pleaded guilty to first degree assault. Two issues are presented: (1) whether the aggravating factors relied on by the court are supported by the record and justify an exceptional sentence; and (2) whether Mr. Holyoak was denied due process when he was not specifically informed that the court would impose a sentence outside the standard range prior to the sentencing hearing. We affirm.

On October 8, 1985, an information was filed charging Mr. Holyoak with first degree assault with intent to commit rape. On January 7, 1986, Mr. Holyoak entered a plea of guilty to that charge. At that time the court was presented with the Offense Report which reads as follows:

[The victim] stated that as she sat on the raised railing of the archway beneath the bridge, she observed the suspect approach her. In addition, she observed him carrying a shirt or shorts, blue in color. [The victim] further stated that she became nervous due to the manner in which the suspect was looking at her. The suspect walked up to [the victim] and stated, "Pretty far down there, isn't it?" [The victim] replied by saying, "yeah". After a brief pause, the suspect asked [the victim], "Why don't you come down here, so I can fuck you?"

When [the victim] refused, the suspect grabbed her and began to push her over the edge. He then touched her genitals and asked her again. [The victim] said, "No, I'm only fourteen". The subject asked, "Why not? I'll push you off!". He then tried to push her off the edge. [The victim] was able to crawl down as the suspect began pushing and pulling her to the concrete. When the suspect finally had her on the floor of the structure he told her, "Take your panties off". When [the victim] refused, the suspect slammed her head onto the concrete ducking of the structure. The suspect began to severely assault [the victim] by striking her with his fists, banging her head and face onto the concrete, then dragging her down to the section between the arches. The suspect then began striking her in the head and face with large concrete fragments laying in the area. The suspect repeatedly told [the victim] to take off her clothes.

As [the victim] continued to struggle and scream, the suspect held up a piece of concrete and said, "See this? See what I have hear (sic)? I'll kill you now if you don't take your panties off". The suspect then began striking her with the chunk of concrete, beating and choking her into unconsciousness. When [the victim] awakened, she still had her clothes on and the suspect threatened her again. [The victim] then could resist no longer, and the suspect was able to remove her shorts and underpants. The suspect then lowered his shorts, exposing his genitals and attempted to force [the victim's] legs apart. [The victim] advised that she was able to kick the suspect in the genitals several times, and at one time reached and squeezed/pulled his genitals, apparently with no effect. [The victim] advised that the suspect was not erect during the assault. At that time, Coch arrived and chased the suspect away, then taking her to the Deaconess Hospital.

Mr. Holyoak agreed the Offense Report was accurate. The court found a factual basis for the plea and found the defendant guilty as charged.

Mr. Holyoak was sentenced on February 26, 1986. At that time, it was determined he had four prior convictions, which resulted in an offender score of 4. Based on that score, the standard range for his offense was determined to be 93 to 123 months. However, the court went beyond the standard range and imposed an exceptional sentence of 246 months after finding three aggravating factors: (1) vulnerability of the victim; (2) the defendant's exceptional cruelty in committing the offense; and (3) the nature of the defendant's prior convictions indicated a substantial future dangerousness to the community. Mr. Holyoak appeals.

The initial question is whether the aggravating factors relied on by the court are supported by the record and if they justify an exceptional sentence. Mr. Holyoak contends that the court had insufficient grounds to exceed the standard range.

The Sentencing Reform Act of 1981 (SRA), RCW 9.94A, provides that an appellate court may reverse a sentence outside the presumptive range only if it finds:

(a) Either that the reasons supplied by the sentencing judge are not supported by the record which was before the judge or that those reasons do not justify a sentence outside the standard range for that offense; or

(b) that the sentence imposed was clearly excessive or clearly too lenient.

RCW 9.94A.210(4).

In State v. Fisher, 108 Wash.2d 419, 423, 739 P.2d 683 (1987), the court provided the analytical framework for reviewing sentencing decisions falling within subsection (a) of RCW 9.94A.210(4):

In reviewing an exceptional sentence under the standards in subsection (a), the appellate court must conduct a 2-part analysis. First, it must decide if the record supports the sentencing judge's reasons for imposing the exceptional sentence. Because this is a factual question, the sentencing judge's reasons must be upheld if they are not clearly erroneous. State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986). Under the second part of RCW 9.94A.210(4)(a), the appellate court must determine independently, as a matter of law, if the sentencing judge's reasons justify the imposition of a sentence outside the presumptive range. Nordby, at 518, 723 P.2d 1117. The reasons must be "substantial and compelling". RCW 9.94A.120(2). They must "take into account factors other than those which are necessarily considered in computing the presumptive range for the offense." Nordby, at 518, 723 P.2d 1117.

The court's first reason was the victim's vulnerability in that she was only 14 years of age, weighed only about 100 pounds, and was approximately 5 feet tall. Mr. Holyoak does not challenge these facts. Nonetheless, Mr. Holyoak contends these reasons are insufficient to go outside the standard range because vulnerability of a victim is an inherent characteristic of the crime of first degree assault. He supports this position with language from State v. McClay, 310 N.W.2d 683 (Minn.1981), where the victim was abducted at gun point. The court noted:

There is no question but that the person abducted, Patricia Barnett, is a petite person and in certain situations her size might make her particularly vulnerable, but we do not believe she should be deemed any more vulnerable in the face of a gun than a larger person because a gun can kill either quite easily.

McClay, at 685.

Contrary to Mr. Holyoak's assertion, this case is distinguishable from McClay. Although the court there was correct in determining the victim's size, in the face of a gun, was irrelevant, the same reasoning is not valid in this type of physical assault case. In this instance, the victim's diminutive size not only made it more likely that she would be chosen as a victim, but it...