State v. Mutch

• Decision Date: 09 June 2011
• Docket Number: Nos. 82029–5,82425–8.,s. 82029–5
• Citation: 171 Wash.2d 646,254 P.3d 803
• Court: Washington Supreme Court
• Parties: STATE of Washington, Respondent,v.Richard Henry MUTCH, aka David En Banc Joseph Savanti, Appellant.

171 Wash.2d 646

254 P.3d 803

STATE of Washington, Respondent,

v.Richard Henry MUTCH, aka David En Banc Joseph Savanti, Appellant.

Nos. 82029–5

82425–8.

Supreme Court of Washington, En Banc.

Argued Sept. 16, 2010.Decided June 9, 2011.

David L. Donnan, Nancy P. Collins, Washington Appellate Project, Seattle, WA, for Appellant.David Stuart McEachran, Hilary A. Thomas, Whatcom County Prosecutors Office, Bellingham, WA, for Respondent.

OWENS, J.

[171 Wash.2d 651] ¶ 1 Richard Henry Mutch was convicted of five counts of second degree rape and one count of second degree kidnapping. After his life sentence was vacated several years after his conviction, the trial court imposed an exceptional sentence of 400 months at resentencing. Mutch raises several challenges to this exceptional sentence, including the trial court's authority to impose the sentence on the basis that multiple current offenses and a high offender score would otherwise result in some crimes going unpunished and whether the sentence effects a double jeopardy violation. We affirm the final judgment and sentence.

FACTS

¶ 2 In 1994, over the course of a night and through the next morning, Mutch repeatedly raped J.L. in her home, under threat of force, while her daughter was sleeping in another room. J.L. testified about five distinct episodes of assault that each included oral sex and vaginal intercourse. Between the first four episodes of assault, Mutch stopped for about an hour and made J.L. say various things aloud, including that he is a king and that she belonged to him. After the fourth episode, Mutch slept. When he awoke, he again forced J.L. to have sex in the same manner as the four previous times. Mutch was arrested when he took J.L. to get a marriage license, and J.L. secretly told a clerk that she was being held and forced to marry Mutch against her will. Mutch admitted to a detective that he participated in multiple sexual acts with J.L. but claimed that their involvement was consensual. His defense at trial also centered on consent.

[171 Wash.2d 652] ¶ 3 A jury convicted Mutch of five counts of second degree rape and one count of second degree kidnapping. The trial court originally sentenced Mutch as a persistent offender to life in prison without the possibility of parole, but this court vacated his sentence in 2008 because one of Mutch's strike offenses was not comparable to a Washington strike offense under In re Personal Restraint of Lavery, 154 Wash.2d 249, 258, 111 P.3d 837 (2005). Prior to resentencing at the trial court, the State filed a notice of intent to seek an exceptional sentence. The trial court resentenced Mutch to an exceptional sentence of 400 months, finding that Mutch's offender score was 20, while the sentencing grid only went up to 9, so his multiple current offenses and high offender score would leave three counts of rape and one count of kidnapping unpunished without an exceptional sentence. The trial court noted that the exceptional sentence was justified pursuant to both the State's argument and the trial court's independent determination.

¶ 4 Mutch filed direct appeals of his new sentence with this court and the Court of Appeals, arguing that the trial court did not have the authority to impose an exceptional sentence and that the sentence was invalid because his offender score was miscalculated. This court consolidated these appeals and granted direct review. Meanwhile, while review was pending, the trial court held a second resentencing hearing and applied a lower offender score based on the State's concession that Mutch's offender score had been incorrectly calculated. The trial court again imposed an exceptional sentence of 400 months, though this time based on an offender score of 16. Mutch filed another appeal with this court, challenging the newest judgment and sentence. We consolidated Mutch's appeals of his first and second resentencing hearings and consider them both now.

ISSUES

¶ 5 1. Was Mutch's offender score miscalculated and, if so, does that invalidate the basis for his exceptional sentence?

[171 Wash.2d 653] ¶ 6 2. Did the trial court have the authority to impose an exceptional sentence?

¶ 7 3. Is Mutch being punished in violation of the constitutional protection against double jeopardy?

ANALYSIS

I. Offender Score

¶ 8 Mutch argues that his offender score was miscalculated and that the error invalidates the basis for his exceptional sentence. We review the calculation of an offender score de novo. State v. Parker, 132 Wash.2d 182, 189, 937 P.2d 575 (1997). Here, the State concedes that Mutch's offender score was miscalculated at his first resentencing hearing. Remand for resentencing with the correct offender score would typically be the appropriate remedy. Id. at 192–93, 937 P.2d 575. However, while review was pending in this court, on the State's motion, the trial court held a new resentencing hearing to remedy the conceded error. The trial court resentenced Mutch with a corrected offender score of 16, the total arrived at after extracting his prior conviction for federal bank robbery from the calculation and counting his two prior convictions for first degree robbery together. Compare Clerk's Papers (CP) at 9, with Suppl. CP at 166; see former RCW 9.94A.360(3), (6)(c) (1992), recodified as RCW 9.94A.525(3), (5)(a)(ii). At 16, the score is still well above 9, the high-end score on the sentencing grid.

¶ 9 Mutch argues that his offender score is still incorrect because the trial court did not consider his five counts of rape to be “the same criminal conduct.” We review the “ ‘trial court's determination of what constitutes the same criminal conduct ... [for] abuse of discretion or misapplication of the law.’ ” State v. Tili, 139 Wash.2d 107, 122, 985 P.2d 365 (1999) (quoting State v. Walden, 69 Wash.App. 183, 188, 847 P.2d 956 (1993)). Under the law in effect at the time of Mutch's conviction, multiple offenses were considered “the same criminal conduct” for sentencing purposes if they involved the same criminal intent, were committed at the same time and place, and involved the same victim. Former RCW 9.94A.400(1)(a) (1990), recodified as RCW 9.94A.589(1)(a). Mutch argues that his five counts of rape meet these criteria and should therefore have been counted together in the offender score as a single offense.

¶ 10 Mutch advanced this argument pro se at his sentencing hearing, and the trial court rejected it without any analysis on the record. We note that a trial court's outright refusal to even consider the argument that crimes that are the same criminal conduct for sentencing purposes may be error.¹ Here, although there was some argument at the resentencing hearing, the court's analysis is not evident in the record. Nevertheless, there is sufficient evidence in the trial court record to sustain a finding that the multiple rapes should be treated separately for sentencing purposes. We therefore affirm the trial court's calculation at the second resentencing hearing because it was not an abuse of discretion to count each rape separately in calculating the offender score.

¶ 11 In Tili, this court found that, while the unit of prosecution for rape is any penetration, 139 Wash.2d at 114, 985 P.2d 365, the multiple counts in that case constituted the same criminal conduct for sentencing purposes, id. at 124–25, 985 P.2d 365. The Tili court distinguished State v. Grantham, 84 Wash.App. 854, 856–57, 859, 860–61, 932 P.2d 657 (1997), a Court of Appeals case that found that multiple counts of rape were not the same criminal conduct. Tili, 139 Wash.2d at 123–24, 985 P.2d 365. The critical difference between Tili and Grantham is that the defendant in Grantham “ ‘had the time and opportunity to pause, reflect, and either cease his criminal activity or proceed to commit a further criminal act,’ ” so his “ ‘crimes were sequential, not simultaneous or continuous.’ ” Id. (quoting Grantham, 84 Wash.App. at 859, 932 P.2d 657). The two rapes in Grantham occurred in the same evening, interrupted by threats and other physical assaults. Grantham, 84 Wash.App. at 856, 932 P.2d 657. In contrast, Tili's three counts of rape occurred over approximately two minutes, so the court found it “unlikely that Tili formed an independent criminal intent.” Tili, 139 Wash.2d at 124, 985 P.2d 365. The distinction turned on the objective formation of criminal intent by the defendant between the multiple counts of rape. Id. at 123, 985 P.2d 365; see State v. French, 157 Wash.2d 593, 613, 141 P.3d 54 (2006).

¶ 12 Here, Mutch's criminal acts happened over the course of a night and the entire next morning. Between the last incident of rape and the previous four, Mutch slept, which certainly required him to form a new criminal intent once he awoke. Moreover, the fifth rape took place in another room of the house. Regarding counts one through four, Mutch emphasizes J.L.'s testimony that “the same thing” happened “four times that night,” referring to repeated episodes of oral and vaginal rape, broken by gaps of time with no assault where Mutch made her repeat things, including “who's the king and who do you belong to.” 2 Verbatim Report of Proceedings (Trial, Sept. 21, 1994) (VRP) at 178. Mutch argues that he barely paused, never changed his focus, and that he therefore did not form new intent. His argument is unpersuasive.

¶ 13 The facts of this case are more like those in Grantham than in Tili or other cases where the different counts of rape occurred within a very short time period. See, e.g., State v. Palmer, 95 Wash.App. 187, 190, 975 P.2d 1038 (1999). J.L. clearly testified that Mutch stopped between each of the episodes of rape and that the time between each rape episode during the night was “around an hour or so.” 2 VRP (Trial, Sept. 21, 1994) at 273. Given these substantial breaks between the different counts, Mutch clearly had time to pause, reflect, and either cease or continue. He objectively formed new...