State v. Larson

• Decision Date: 18 December 1989
• Docket Number: No. 22357-5-I,22357-5-I
• Citation: 783 P.2d 1093,56 Wn.App. 323
• Parties: STATE of Washington, Respondent, v. Lawrence H. LARSON, Jr., Appellant.
• Court: Washington Court of Appeals

Page 323

56 Wn.App. 323

783 P.2d 1093

STATE of Washington, Respondent, v. Lawrence H. LARSON, Jr., Appellant.

No. 22357-5-I.

Court of Appeals of Washington Division 1.

Dec. 18, 1989.

Washington Appellate Defenders, Lenell Nussbaum, Seattle, for appellant Lawrence Larson, Jr.

Norm Maleng, King County Pros. Atty., Barbara Linde, Deputy, Seattle, for respondent State.

WEBSTER, Judge.

Lawrence Larson Jr. appeals an amended judgment and sentence imposing concurrent sentences within the standard range after this court ruled that consecutive sentences were erroneously imposed under the SRA because findings and conclusions had not been entered to support an exceptional sentence. Larson argues that his due process and double jeopardy rights were violated because the longest concurrent sentence, 360 months, exceeds the 281-month consecutive sentence originally imposed on the same count. The total time imposed on remand, 360 months, is less than the aggregate period of incarceration ordered originally, 363 months.

FACTS

Larson was convicted of first degree murder, second degree rape, and first degree arson for events which occurred on the night of February 18, 1985. He had suspected his wife, Rose, of having an affair with another man. He decided to kill her and himself. On the night in question, he changed his mind and attacked Rose's two children from another marriage. He stabbed her 12-year-old son while the latter lay in bed. The boy suffered extensive wounds indicating a prolonged struggle. In another room of the same house, he forced Rose's 13-year-old daughter to have sex with him. The jury convicted Larson of second degree rape based on the force used, not the victim's age. After the rape, Larson set the house on fire and left the scene.

Original Sentencing

Larson had no criminal history, but the court calculated the standard range for each offense by treating the other two as criminal history. See RCW 9.94A.400(1)(a). The standard range for the murder was 281-374 months, and for the rape and arson, 41-51 months each. The State recommended concurrent sentences of 60 years for the murder and 10 years each for the rape and arson. It argued that an exceptional sentence was warranted because the crimes manifested deliberate cruelty and the victims were particularly vulnerable. See RCW 9.94A.390(2)(a), (b). The defense urged a standard-range sentence.

The court commented that the murder was "egregious" and sentenced Larson "to life" for the murder and rape and "ten years" for the arson. The court apparently intended to set maximum terms as prescribed by pre-SRA law. See RCW 9.95.010. The court said it was "trying" to sentence Larson within SRA guidelines and chose consecutive sentences of 281, 41, and 41 months. The court concluded, "[t]hat works out to be 30 years in the penitentiary." The 363-month total was 30 years and 3 months.

Defense counsel said he did not understand the order for consecutive sentences. The court responded, "It will run consecutively." (Emphasis added). Previously, defense counsel indicated that consecutive sentences required exceptional sentence findings. Counsel did not reiterate this when the court announced Larson's sentence.

Prior Appeal

On appeal, this court affirmed Larson's convictions. The State conceded it was error to impose consecutive sentences without findings supporting an exceptional sentence. See RCW 9.94A.400(1)(a). The State asked that the case be remanded for entry of those findings. Larson requested a mandate that the sentences run concurrently. This court said it would not "remove the discretion from the trial court in whether or not an exceptional sentence should be imposed." The court remanded "for resentencing permitting the trial court to enter appropriate findings of fact and conclusions of law." State v. Larson, No. 17187-9-1, slip op. at 5-6 (Wash.Ct.App. Dec. 7, 1987).

Resentencing

On remand, the State initially urged the court to enter findings supporting the consecutive sentences. Defense counsel objected, noting the court's original intent to follow SRA guidelines. Counsel understood this to be a rejection of the State's request for an exceptional sentence. Later, the State noted that the sum of the consecutive sentences 363 months, was within the standard range for the murder conviction. The State felt this was the amount of time the court originally intended Larson to serve. The court said it had originally intended to sentence Larson to a total of 30 years, and that the consecutive sentences were merely a means of achieving that end. It agreed with the State that the sentences should run concurrently and that a standard range sentence should be imposed. The State suggested 363 months for the murder, to which the court said, "Make it 360. That's 30 years." The court entered findings and conclusions corresponding to its oral decision.

ENHANCEMENT OF SENTENCE ON REMAND

Larson claims he was denied due process and subjected to double jeopardy when the trial court "increased" his consecutive murder sentence from 281 months to a concurrent sentence of 360 months.

Due Process

In support of his due process argument, Larson relies on a presumption of vindictiveness which is said to arise when a judge imposes a more severe sentence following a partially successful appeal. See North Carolina v. Pearce, 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). This raises the question whether Larson's murder sentence was increased on remand. Federal courts addressing the issue uniformly hold that the Pearce presumption never arises when the aggregate period of incarceration remains the same or is reduced on remand. See United States v. Cochran, 883 F.2d 1012 (11th Cir.1989) (concurrent sentences improperly enhanced to 30 years originally, replaced on remand with unenhanced concurrent and consecutive sentences totaling 25 years); United States v. Pimienta-Redondo, 874 F.2d 9 (1st Cir.1989) (en banc), cert. denied, --- U.S. ----, 110 S.Ct. 233, 107 L.Ed.2d 185 (1989) (consecutive sentences replaced on remand with doubled single sentences after appellate court ruled that two crimes charged constituted a single offense); United States v. Gray, 852 F.2d 136 (4th Cir.1988) (25-year aggregate term, including 3- and 5-year concurrent sentences and 20-year consecutive sentence, replaced with consecutive 3- and 5-year sentences following retrial and acquittal of count supporting original 20-year consecutive sentence); United States v. Bentley, 850 F.2d 327 (7th Cir.1988), cert. denied, --- U.S. ----, 109 S.Ct. 501, 102 L.Ed.2d 537, rehearing denied, --- U.S. ----, 109 S.Ct. 885, 102 L.Ed.2d 1008 (1989) (concurrent 12-year sentences exceeded 5-year maximum for each count, replaced on remand with consecutive sentences aggregating 12 years); United States v. Diaz, 834 F.2d 287 (2nd Cir.1987), cert. denied, --- U.S. ----, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988) (concurrent sentences replaced with consecutive sentences after conviction supporting only consecutive sentence was reversed on appeal; aggregate period of incarceration remained the same); United States v. Cataldo, 832 F.2d 869 (5th Cir.1987), cert. denied, 485 U.S. 1022, 108 S.Ct. 1577, 99 L.Ed.2d 892 (1988) (consecutive sentences on two counts replaced by doubled sentence on single count; presumption of vindictiveness either does not arise or is sufficiently rebutted by trial court's original sentencing intent); United States v. Hagler, 709 F.2d 578 (9th Cir.1983), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983) (sentence increased on remand to match identical aggregate term originally imposed following reversal of five counts). See also United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987), cert. denied, 484 U.S. 956, 108 S.Ct. 351, 98 L.Ed.2d 376 (1987); United States v. Bay, 820 F.2d 1511, 1513 (9th Cir.1987) (same result even when multiple counts do not stem "from a common scheme or single course of continuing conduct"); but cf. Pimienta-Redondo, 874 F.2d at 17 (Breyer, J., concurring) ("[S]ince the basic conduct underlying both counts is the same, and since that basic conduct determined the sentence, it is virtually inconceivable that the similarity of old and new sentences could reflect 'vindictiveness.' ").

These decisions conform to the Supreme Court's most recent treatment of the Pearce presumption. See Alabama v. Smith, 490 U.S. ----, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989). There, the Court held that a presumption of vindictiveness does not arise unless there is a reasonable likelihood that the increase in sentence is the product of actual vindictiveness. "Where there is no such reasonable likelihood, the burden remains upon the defendant to prove actual vindictiveness." 490 U.S. at ----, 109 S.Ct. at 2205, 104 L.Ed.2d at 873. The presumption did not arise, although the sentencing judge imposed a stiffer sentence after erroneously denying the defendant's motion to withdraw a guilty plea, because the increase in sentence was not "more likely than not attributable to ... vindictiveness on the part of the sentencing judge." 490 U.S. at ----, 109 S.Ct. at 2205, 104 L.Ed.2d at 874.

Larson's murder sentence does not trigger the Pearce presumption for at least two reasons. First, his revised aggregate sentence is less severe than his original aggregate sentence. Second, the "increase" in the murder sentence is fully explained by the trial court's original sentencing intent. Thus, there is no hint of retaliation, and certainly no reasonable probability of actual vindictiveness. See Alabama v. Smith, supra.

Double Jeopardy

In support of his double jeopardy argument, Larson claims he had a legitimate expectation of finality in his sentence. However, the case upon which he relies establishes the contrary. See United States v. Fogel, 829 F.2d 77 (D.C.Cir.1987) (Bork, J.). As in Pearce --which holds that double jeopardy does not bar increase of a sentence following a new trial...