State v. McAlpin

• Decision Date: 16 July 1987
• Docket Number: No. 53276-1,53276-1
• Citation: 108 Wn.2d 458,740 P.2d 824
• Parties: STATE of Washington, Respondent, v. Douglas S. McALPIN, Appellant.
• Court: Washington Supreme Court

Page 458

108 Wn.2d 458

740 P.2d 824

STATE of Washington, Respondent, v. Douglas S. McALPIN, Appellant.

No. 53276-1.

Supreme Court of Washington,

En Banc.

July 16, 1987.

Crawford, McGilliard, Peterson & Yelish,

Steven Dixon, Port Orchard, for appellant.

C. Danny Clem, Kitsap County Pros., Reinhold P. Schuetz, Deputy County Pros., Port Orchard, for respondent.

CALLOW, Justice.

Douglas McAlpin received a sentence of 90 months following his plea of guilty to a charge of first degree robbery committed on the first day of April 1985. The sentence, signed on the 13th day of May 1985, exceeded the presumptive sentence range established under the Sentencing Reform Act of 1981 (SRA), RCW 9.94A. The defendant appealed. We affirm.

The defendant, 18 years of age, was charged with first degree robbery, conspiracy to commit first degree robbery, and second degree burglary. He pleaded guilty to all three offenses. The trial court sentenced him to 90 months on the robbery charge, 49 1/2 months on the conspiracy charge, and 9 months on the burglary charge, with all terms to be served concurrently. He challenges only the 90 months sentence.

Under the SRA the defendant's presumptive sentence range for first degree robbery was 46-61 months. This range, which is based on the seriousness of the crime committed and the offender's "criminal history", accounted for: (1) the defendant's two other current convictions for conspiracy and burglary; and (2) two prior juvenile convictions for second degree theft, both crimes being committed while the defendant was between 15 and 18 years of age and both convictions being entered on the same date. See former RCW 9.94A.030(19)(a), .310, .320, former .360(1), (5), (10), (11), .400 (1)(a).

At the defendant's sentencing hearing, it was revealed that his actual record of juvenile crime far exceeded that which was accounted for in determining the standard sentence range. The presentence report confirmed that the defendant had, in fact, amassed a juvenile record of "three files comprising hundreds of pages". The prosecutor supplemented this report with additional information obtained from juvenile court authorities.

The defendant's juvenile record included the following: (1) prior to reaching his 15th birthday he was convicted four times for second degree burglary, and once for taking a motor vehicle without permission (all felonies); (2) between the ages of 15 and 18, he had been found guilty of false reporting and third degree malicious mischief (both misdemeanors); (3) he had been committed to juvenile institutions on four occasions; and (4) he had had "various additional felony arrests which were handled informally."

The presentence report described the defendant as a "textbook sociopath" who had no remorse for his crimes, a long history of drug abuse as a youth, and two episodes in which he had tortured animals. While in the Kitsap County Corrections Center, sharpened toothbrushes were taken away from him. The report aptly characterized the defendant as an "exceedingly dangerous young man".

The defendant's counsel did not object to the introduction of the above record at any time prior to the trial court's oral pronouncement of sentence. The trial court had explicitly offered counsel the opportunity to challenge the record, and counsel declined the invitation:

THE COURT: Before we go any further, [counsel], are you challenging the juvenile record?

[DEFENDANT'S COUNSEL]: I am not, Your Honor. I am handing up a scoring sheet which I used that shows that I am in agreement as to what the standard range is.

In addition to the juvenile record, it was disclosed that the defendant, in entering his guilty plea to the first degree robbery charge, had also signed a plea bargaining agreement. The prosecutor had agreed not to file charges regarding additional crimes to which the defendant had confessed, and for which he had agreed to make restitution.

The prosecutor recommended a sentence of 61 months, the top of the presumptive range. The trial court, however, imposed a 90-month exceptional sentence. The court cited the following reasons for imposing this sentence:

That the defendant has an extensive criminal history, as set forth in the presentence report ... That such criminal history includes at least five (5) felony convictions as a juvenile prior to the defendant's fifteenth birthday, four (4) commitments to juvenile institutions and various additional felony arrests which were handled informally. That in the course of the police investigations of the instant offenses the defendant also confessed to his involvement in additional burglaries or criminal trespasses with which he was not charged but for which he agreed to make restitution. That such convictions were not computed as prior criminal history and thus the defendant is not being penalized twice for his behavior.

That the defendant is a danger to the community, as indicated by his actual criminal history and the early point in his life at which he first had contact with the criminal justice system.

That the defendant is a sophisticated criminal, as is reflected by his long criminal experience and background, irrespective of the fact that the crimes for which he is presently being sentenced are not of the same sophistication as, for example, computer theft.

That it is in the best interests of justice and community that an exceptional sentence be imposed in this matter.

The defendant appealed the exceptional sentence, see RCW 9.94A.210(2). We accepted certification.

I

The appellate review of exceptional sentences is governed by RCW 9.94A.210(4), which provides:

To reverse a sentence which is outside the sentence range, the reviewing court must find: (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.

Our first task is to determine whether the trial court's reasons for imposing an exceptional sentence are supported by the record. This is a factual inquiry and the trial court's findings will be upheld unless they are clearly erroneous. State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986).

The defendant's lengthy juvenile record is amply documented, both in the presentence report and in the information which the prosecutor obtained from juvenile court authorities. The defendant now contends, however, that this record is inaccurate. He asserts that he is entitled to an evidentiary hearing to challenge the record. See RCW 9.94A.370. We disagree.

At no time prior to the trial court's oral pronouncement of sentence did defendant's counsel challenge the accuracy of the juvenile record, even though the trial court explicitly afforded him the opportunity to do so. It may be that counsel did not challenge the juvenile record because he concluded that the best tactical choice was to avoid emphasizing the record to the sentencing judge. Nevertheless, the absence of a timely challenge to the record or a timely request for an evidentiary hearing waives this issue for purposes of appellate review. See State v. Gunther, 45 Wash.App. 755, 759, 727 P.2d 258 (1986); State v. Harp, 43 Wash.App. 340, 343 n. 1, 717 P.2d 282 (1986). In any event, there is nothing to suggest that the defendant's juvenile record is inaccurate in any way. We uphold the trial court's findings as not clearly erroneous.

II

Next, we must independently determine, as a matter of law, whether the trial court's reasons justify an exceptional sentence. RCW 9.94A.210(4)(a). Nordby, 106 Wash.2d at 518, 723 P.2d 1117. There must be "substantial and compelling" reasons for imposing such a sentence. RCW 9.94A.120(2). A list of aggravating circumstances is contained in RCW 9.94A.390(2); however, this list is illustrative only and not an exclusive or exhaustive compilation of what constitutes "substantial and compelling reasons".

A

We turn first to the trial court's consideration of the defendant's lengthy record of juvenile felonies. Generally, "criminal history" may not be used to justify an exceptional sentence, because it is one of two factors (the other being the "seriousness level" of the current offense committed) which is used to compute the presumptive sentence range for a particular crime. See RCW 9.94A.310-.330. A factor used in establishing the presumptive range may not be considered a second time as an "aggravating circumstance" to justify departure from the range. Nordby, at 518 and n. 4, 723 P.2d 1117; State v. Hartley, 41 Wash.App. 669, 671, 705 P.2d 821 (1985).

The term "criminal history" as used in the SRA for purposes of the presumptive range calculation includes only certain types of juvenile crimes. Specifically, it is limited to juvenile felonies committed while the defendant was between 15 and 18 years of age. RCW 9.94A.030(8)(b); RCW 9.94A.360(1). The trial court, recognizing this limitation, did not rely on the defendant's two prior juvenile convictions for second degree theft, both committed while he was between 15 and 18 years of age, as reasons to impose an exceptional sentence. These crimes had already been considered when computing the presumptive sentence range.

On the other hand, the trial court did cite the defendant's five prior pre-age 15 felony convictions as aggravating factors justifying an exceptional sentence. The defendant asserts that this constituted error; he argues that the Legislature, by excluding such crimes from the presumptive range calculation, intended to exclude consideration of them entirely. We disagree.

One of the overriding purposes of the Sentencing Reform Act is to ensure that sentences are proportionate to the seriousness of the crime committed and the defendant's criminal history. RCW 9.94A.010(1). This purpose would be frustrated if a court were required to...