State v. Tili, 71681-1.

Citation60 P.3d 1192,148 Wash.2d 350
Decision Date09 January 2003
Docket NumberNo. 71681-1.,71681-1.
CourtUnited States State Supreme Court of Washington
PartiesSTATE of Washington, Respondent, v. Fonotaga TILI, Petitioner.

Linda King, Steilacoom, for Petitioner.

Gerald Horne, Pierce County Prosecutor, Kathleen Proctor, Deputy County Prosecutor, Tacoma, for Respondent.


Fonotaga Tili challenges the imposition of an exceptional sentence for three counts of first degree rape, one count of first degree burglary, and one count of second degree assault. Holding that the offender scores were necessarily calculated correctly, that collateral estoppel does not bar the imposition of the exceptional sentence at the resentencing, and that the trial court did not abuse its discretion on resentencing, we affirm the imposition of an exceptional sentence.


On September 16, 1997, the victim, L.M., worked a double shift. As was her custom, L.M. left her purse at home because there was no place to safely store it at work. L.M.'s purse was later found in the apartment where the defendant, Fonotaga Tili, was staying, which provided circumstantial evidence that Tili broke into L.M.'s apartment and stole her purse at some point while L.M. was at work.

At around 11:15 p.m., on September 16, L.M. returned from work and ran a bath. Once in the bath, L.M. heard what sounded like someone entering her apartment. Frightened, L.M. got out of the bathtub and locked the bathroom door. After about four minutes, she decided to look outside the bathroom. Before leaving the bathroom, L.M. dialed "9" and "1" on her cordless phone, without dialing the last "1" necessary to complete the 911 call.

When L.M. entered the kitchen, she saw Tili as he leaped from his hiding spot. He wore only underwear and was holding a heavy metal pan. Tili violently and repeatedly struck L.M. in the head with the pan until she collapsed on the floor. As Tili began the attack, L.M. was able to dial the last "1" to complete the 911 call. The sounds of the ensuing physical and sexual assault, lasting about two minutes, were caught on the 911 system.

When L.M. collapsed to the floor after numerous blows to the head with the metal pan, she begged Tili to stop and told him to take anything he wanted. Ignoring her, Tili told L.M. to "shut up" and said he was going to kill her.

Tili moved L.M. out from under the kitchen table and told her to lie on her stomach and keep her face on the floor. Tili raised L.M.'s hips and lifted her robe, exposing her nude body. He then licked her anus and proceeded to penetrate L.M.'s anus with his finger. He also used his finger to penetrate her vagina. Both of these penetrations were made separately and not at the same time. Tili demanded that L.M. say she "liked it," and she complied. Tili then attempted to penetrate L.M.'s anus with his penis, but stopped, and instead inserted his penis into her vagina. He told L.M. he had a knife.

At this time in the assault, two police officers knocked on L.M.'s door. Tili told L.M. to stay quiet or he would kill her. Upon the police officers' second knock, they announced themselves and L.M. screamed. Tili then delivered multiple blows with his fist to L.M.'s head before fleeing as the officers kicked the door open. The officers were able to glimpse Tili before he escaped through the bedroom window. Using a police dog, the officers found Tili, still in his underwear, hiding under a truck in the parking lot outside L.M.'s apartment. L.M. was able to identify Tili as her attacker at trial. She had seen him in the apartment complex a few days earlier and was acquainted with him from high school, although they were not friends.


Tili was charged with one count of first degree rape for each independent penetration of the same or different orifice. He was also charged with one count of first degree burglary and one count of second degree assault.

He was convicted on all counts and was sentenced to 417 months with the three counts of rape to run consecutively. The burglary and assault sentences were to run concurrently with each other and the three rape convictions. At sentencing, the trial court stated that it did not believe that an exceptional sentence would be sustained on appeal if the rapes were considered separate and distinct conduct, as the trial court had considered them. However, the court went on to indicate that, should the multiple rapes be considered same criminal conduct on appeal, the same sentence would be imposed, as an exceptional sentence upward, justified by deliberate cruelty and vulnerability of the victim.

Tili appealed to this court, contending, among other things, that the trial court erred in imposing consecutive terms for his three first degree rape convictions. This court upheld his convictions, but remanded for resentencing. This court held that the assault merged with the rapes but not the burglary, and that the three rapes constituted same criminal conduct for sentencing purposes. State v. Tili, 139 Wash.2d 107, 985 P.2d 365 (1999) (Tili I).

At resentencing, the trial court maintained Tili's 417-month sentence as an exceptional sentence based on deliberate cruelty, vulnerability of the victim, and the multiple penetrations. The sentences for all counts were to run concurrently.


Did the trial court miscalculate the offender scores, leading to incorrect presumptive sentencing ranges?

Where the court declined to impose an exceptional sentence at the original sentencing, is the court collaterally estopped from imposing an exceptional sentence on remand?

Was an exceptional sentence justified due to deliberate cruelty, multiple incidents per victim, and the operation of the multiple offense policy?

Standard of Review

We review a sentencing court's calculation of an offender score de novo. State v. McCraw, 127 Wash.2d 281, 289, 898 P.2d 838 (1995).

In order to reverse an exceptional sentence, the reviewing court must find (a) that the reasons relied upon by the sentencing judge when imposing the sentence are not supported by the record or do not justify the exceptional sentence, or (b) that the sentence imposed was clearly excessive or clearly too lenient. Former RCW 9.94A.210(4) (1998). Under (a), the court reviews the reasons under a clearly erroneous standard; the court reviews justification as a matter of law. Under (b), the court reviews a clearly excessive or clearly too lenient determination using an abuse of discretion standard. State v. Pryor, 115 Wash.2d 445, 450, 799 P.2d 244 (1990) (citing State v. Nordby, 106 Wash.2d 514, 517-18, 723 P.2d 1117 (1986)).

Calculation of Offender Score

A correct offender score must be calculated before a presumptive or exceptional sentence is imposed. Ordinarily, imposition of an exceptional sentence requires a correct determination of the standard range. State v. Parker, 132 Wash.2d 182, 189, 937 P.2d 575 (1997). Remand is necessary when the offender score has been miscalculated unless the record makes clear that the trial court would impose the same sentence. Id. at 189, 937 P.2d 575.

Tili contends that this court must remand for resentencing because the trial court incorrectly calculated his offender score before imposing the exceptional sentence. He asserts a two part error on this matter. First, he points out that the offender scores and presumptive ranges reported in the judgment and sentence are inconsistent with those reported in the findings of fact. Second, he asserts that the trial court gave an oral miscalculation of Tili's offender score for his burglary conviction.

Tili had no prior criminal history that would have counted toward his offender score. The correct sentencing data based upon this court's ruling in Tili I is calculated as follows -------------------------------------------------------------------------------- Count Offense Level Offender Score Standard range (mos.) -------------------------------------------------------------------------------- Count I Rape 1 XII 2 (Burglary 1) 111-147 Count II Rape 1 XII 2 (Burglary 1) 111-147 Count III Rape 1 XII 2 (Burglary 1) 111-147 Count IV Burglary 1 VII 4 (Rape 1/Assault 2) 36-48 Count V Assault 2 IV 2 (Burglary 1) 12+ -14

Under Tili I, all offenses are to be served concurrently, resulting in confinement under a standard range totaling between 111-147 months. The findings of fact omit the offender scores for each count but report the standard ranges correctly, as they appear in this chart.

Tili correctly points out that the judgment and sentence reflects incorrect offender scores and that the presumptive ranges in the judgment and sentence are inconsistent with those in the findings of fact. However, we hold that the inaccurate figures in the judgment and sentence are without effect, making remand for recalculation of Tili's offender scores unnecessary. Paragraph 2.3 in the judgment and sentence sets forth the sentencing data. The defendant is correct in his contention that the offender scores are incorrectly reported in that paragraph, resulting in an erroneous standard range calculation.

However, Tili's argument disregards several factors that are clear in the record. First, the correct standard sentence calculation is reflected in the findings of fact and conclusions of law for exceptional sentence, which was incorporated into the judgment and sentence by reference. Had the trial court relied on the erroneous offender scores of the judgment and sentence when it calculated the presumptive ranges for the findings of fact, it would have arrived at incorrect ranges. Yet, the presumptive ranges reported in the findings of fact are, in fact, correct. Second, in Tili I we gave a clear instruction as to how the trial court was to calculate Tili's offender scores. Thus, we are certain that the trial court calculated the correct offender scores because it arrived at the correct presumptive sentences reported in the findings of...

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