State v. Tierney

• Court: Court of Appeals of Washington
• Citation: 872 P.2d 1145,74 Wn.App. 346
• Decision Date: 23 May 1994
• Docket Number: No. 32113-7-I,32113-7-I
• Parties: STATE of Washington, Respondent, v. Michael C. TIERNEY, Appellant.

Page 346

74 Wn.App. 346

872 P.2d 1145

STATE of Washington, Respondent, v. Michael C. TIERNEY, Appellant.

No. 32113-7-I.

Court of Appeals of Washington,

Division 1.

May 23, 1994.

Lise Ellner, Dept. of Assgnd. Counsel, Tacoma, for appellant.

Craig Peterson, Peter Goldman, Seattle, for respondent.

PEKELIS, Acting Chief Judge.

Michael C. Tierney (Tierney) appeals the imposition of a 68-month exceptional sentence for a first degree arson conviction, arguing that: (1) the "real facts" doctrine precludes imposition of an exceptional sentence based on facts that also establish elements of other uncharged crimes and (2) the aggravating factor of deliberate cruelty cannot be relied on to support an exceptional sentence for first degree arson because it has already been calculated into the standard sentencing range. We disagree and affirm.

"Fatal Attraction" most appropriately characterizes the circumstances leading up to Tierney's convictions for arson and burglary. In 1986, Susan Okonek (Okonek) met Tierney during a vacation in Hawaii. Over the period of a few days Okonek spent several hours with him. After her vacation, Okonek and Tierney remained in telephone contact. In March 1987, Tierney travelled from Hawaii to visit Okonek at her parents' home in Tacoma, Washington. Okonek cut the visit short after only one day when Tierney became overly possessive toward her.

Tierney telephoned Okonek a week later. Despite her request to stop, Tierney continued to call. In a spring 1987 telephone conversation, Tierney threatened to kill her. Frightened, Okonek changed her phone number. Undeterred, Tierney continued writing to Okonek.

During 1987 and 1988, Tierney made a series of phone calls to Okonek's parents in which he used vituperative language and threatened the lives of Okonek and her father. Tierney stated in one phone message that Okonek was "growing a dick" and referred to Okonek as a "cumsucker". Phone calls of a similar nature resumed in 1991. During one call, which Mr. Okonek received, Tierney threatened to burn down their house.

In July 1991, Tierney managed to reach Okonek again. Because Okonek's number was unlisted, Tierney placed an emergency call via the operator to tell Okonek that her father had been involved in an accident. When Okonek called the number the operator had given her, she reached Tierney. In the course of the conversation, Tierney stated that he wanted to marry her and that if she ever married, "I will kill your husband." Despite Okonek's request that he leave her and her family alone, Tierney left approximately three messages via the operator for her to call a "Michael Okonek".

On August 29, 1991, Okonek, a flight attendant, left for a 2-day trip. Upon returning, she found her porch light out, her front door unlocked, and her apartment ransacked and burned. The only items missing were her address book and a photograph of herself. "Susan Okonek is a cumsucker" was inscribed on the wall of her apartment. Within a day or so of the fire, Okonek found a business card in her parents' mailbox. "Michael was here" was written on the back. In March 1992, Tierney sent one letter to Okonek and another to her parents. The trial court characterized one letter as being of an "obscene nature". ¹

Tierney was charged by amended information with arson in the first degree pursuant to RCW 9A.48.020(1) and residential burglary pursuant to RCW 9A.52.025. At trial, Paul Renaud and Rosilee Hernandez, employees of Okonek's apartment complex, both testified to having observed Tierney loitering outside Okonek's apartment the day before the fire. Hernandez testified that when she questioned Tierney about his presence at the building, he replied that he was looking for his brother. She called the police when he continued to loiter.

Max Caulfield, a private investigator, testified that Tierney had hired him to find Okonek. When all the information he uncovered about Okonek led to her parents' home, Caulfield suggested contacting Okonek's parents so that they could inform Okonek that Tierney was trying to reach her. Displeased by the suggestion, Tierney threatened to kill Caulfield and his "whole fucking family".

The jury convicted Tierney as charged. At sentencing, the court imposed a standard range sentence for the residential burglary conviction, but imposed a 68-month exceptional sentence for the first degree arson conviction. Tierney's standard range was 26-34 months. In imposing the exceptional sentence, the trial court made the following finding of fact:

The substantial and compelling reasons for departing from the presumptive sentencing range in this case are:

The defendant acted with deliberate cruelty in continuing to write, to call, and to threaten both Susan Okonek and her parents despite Susan Okonek's repeated requests to the defendant that he leave her alone. His threats to kill her and her family if she does not marry him have destroyed her peace of mind and that of her family. These additional acts constitute intentional infliction of major emotional distress on the Okonek family and on Susan Okonek and are not contained or included in the charged offenses. The obscene nature of the language ... contained in the March, 1992, letter to them was deliberate and unnecessary cruelty to them after the commission of these charged crimes. See RCW 9.94A.390[.]

Tierney appeals.

I

Tierney first contends that the trial court violated the "real facts" doctrine when it imposed an exceptional sentence for first degree arson based upon its finding of deliberate cruelty.

If the offense involves substantial and compelling circumstances, an exceptional sentence is appropriate. State v. Hammond, 121 Wash.2d 787, 794, 854 P.2d 637 (1993); see RCW 9.94A.120(2). We review the legal sufficiency of the trial court's reasons as a matter of law. Hammond, 121 Wash.2d at 794, 854 P.2d 637; see 9.94A.210(4)(a).

In determining what evidence may be considered in imposing a sentence, the trial court must be mindful of the "real facts" doctrine, which is found in RCW 9.94A.370(2):

In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing.... Facts that establish the elements of a more serious crime or additional crimes may not be used to go outside the presumptive sentence range except upon stipulation or when specifically provided for in [RCW 9.94A.390(2) ].

(Emphasis ours.)

RCW 9.94A.370(2). The real facts doctrine reflects the principle that a sentence should be based only on "the actual crime of which the defendant has been convicted, his or her criminal history, and the circumstances surrounding the crime." State v. Houf, 120 Wash.2d 327, 333, 841 P.2d 42 (1992). "Defendants will be held accountable for what they have been convicted of, but not for crimes that the prosecution either could not or chose not to prove." (Italics omitted.) State v. McAlpin, 108 Wash.2d 458, 466, 740 P.2d 824 (1987) (citing David Boerner, Sentencing in Washington, § 9.16, at 9-49-50 (1985)).

Tierney argues that the facts upon which the trial court based its finding of deliberate cruelty constitute "real facts" that cannot be relied on to impose an exceptional sentence because they make up elements of the additional uncharged crimes of harassment or telephone harassment. Thus, he contends that the trial court erred in relying on those facts to impose an exceptional sentence.

It is undisputed that the facts upon which the trial court relied to impose an exceptional sentence also constitute elements of other uncharged crimes. However, we do not believe that adopting the mechanistic approach to the real facts doctrine advocated by Tierney would be consistent with the purpose of the SRA as a whole. We therefore conclude that, at sentencing, the trial court is not prohibited from considering those facts closely connected to the circumstances underlying the charged offense simply because they also establish elements of additional uncharged crimes.

In State v. Houf, 120 Wash.2d 327, 841 P.2d 42, our Supreme Court, in addressing the real facts doctrine, recognized a distinction between those facts closely connected to the current offense and those facts wholly independent of the current offense. The court held that the trial court erred in imposing an exceptional sentence for unlawful delivery of a controlled substance based upon the fact that the defendant had lied during his trial testimony. The court reasoned that the defendant's lying in his trial testimony could not be considered "circumstance[s] surrounding the charged offense" under RCW 9.94A.390(2). ² Houf, at 331-34, 841 P.2d 42. As a result, the court reasoned that the trial court's reliance on the defendant's perjury to enhance his sentence violated the real facts doctrine, which "does not allow facts which establish the elements of crimes completely unconnected to those charged to be considered in meting out an exceptional sentence." (Emphasis ours.) Houf, at 334, 841 P.2d 42.

Houf is consistent with other Washington cases in which the real facts doctrine has been applied to prohibit the imposition of an exceptional sentence based on facts entirely independent from the crime of conviction. See, e.g., State v. Hammond imposition of exceptional sentence for indecent liberties based on facts that establish elements of bail jumping violates the real facts doctrine) and State v. Henshaw, 62 Wash.App. 135, 813 P.2d 146 (1991) (imposition of exceptional sentence for child molestation based on facts that establish elements of tampering with a witness violate the real facts doctrine).

We hold that the real facts doctrine does not preclude reliance on facts that establish elements of additional uncharged crimes to enhance a sentence when those facts are part and parcel of the current offense. The real facts doctrine only bars reliance on those...