State Of Washington v. John Thomas Tyler ( 2020 )

Filed
Washington State
Court of Appeals
Division Two
October 27, 2020
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
STATE OF WASHINGTON, No. 53257-3-II
Respondent,
v.
JOHN THOMAS TYLER, UNPUBLISHED OPINION
Appellant.
WORSWICK, J. — John Tyler appeals his sentence of 732.5 months to life for convictions
of 15 counts relating to his sexual abuse of his daughter and two stepdaughters over the course of
nearly a decade. In 2002, Tyler was convicted of and sentenced on 15 counts: 11 counts of first
degree child rape, 2 counts of first degree child molestation, and 2 counts of second degree child
rape. Tyler appealed twice and was resentenced twice, although his convictions were affirmed.
At his third sentencing in 2019, the trial court imposed an exceptional sentence upward under
RCW 9.94A.535(2)(c),1 reasoning that some of Tyler’s offenses would otherwise go unpunished.
Tyler argues that his sentence should be vacated and this case remanded for a new
sentencing, arguing that (1) substantial evidence did not support the finding that some of his
crimes would go unpunished given that some were subject to an indeterminate sentence, (2) his
high offender score did not justify an exceptional sentence because the legislature already
considered this factor when making them subject to indeterminate sentences, and (3) his
1
The Legislature has amended RCW 9.94A.535 several times since 1992, but because the
relevant language has not changed, we cite to the current version of the statute, which became
law on July 28, 2019. LAWS OF 2019, ch. 219, § 1.
No. 53257-3-II
exceptional sentence of over 60 years of incarceration was clearly too excessive. In a Statement
of Additional Grounds (SAG) for Review, Tyler challenges the constitutionality of his sentence.
We hold that substantial evidence supports the trial court’s findings, a standard range sentence
would have resulted in most of Tyler’s crimes going unpunished, the sentence was not clearly
too excessive, and Tyler’s sentence did not violate his constitutional rights. Consequently, we
affirm Tyler’s sentence.
FACTS
I. CRIME, TRIAL, AND VERDICT
In March 2002, the Clark County Prosecuting Attorney charged Tyler with 19 counts for
multiple acts of child rape and child molestation of his daughter and two stepdaughters, then 14,
12, and 9 years old. The information alleged counts 1 through 13, 14 through 17, and 18 through
19 as crimes perpetrated against each child respectively.
In August 2002, a jury found Tyler guilty of 15 counts of child molestation and rape.
Tyler was found guilty of 11 counts of first degree child rape, 2 counts of first degree child
molestation, and 2 counts of second degree child rape.
II. SENTENCE AND APPEALS
In 2002, Tyler was sentenced to an exceptional sentence upward of 878 months to life. In
2017, after a successful appeal that challenged the State’s evidence of his criminal history, the
trial court resentenced Tyler to an exceptional sentence for a total of 732.5 months to life.
In 2019, after another successful appeal that challenged the calculation of his offender
score and a community custody condition, Tyler was resentenced again. Tyler’s offender score
was 46.
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The trial court sentenced Tyler to 732.5 months to life by grouping his counts and
running each group consecutively. 2 The trial court made a finding of fact that “defendant has
committed multiple current offenses and the defendant’s high offender score results in some of
the current offenses going unpunished under RCW 9.94A.535(2)(c).” Clerk’s Papers at 322.
Tyler received the maximum standard range sentence of 280 months for 10 of the 11 counts of
first degree child rape and second degree child rape, a median standard range sentence of 173.5
months for the 2 counts of first degree child molestation, and 279 months for count 15 (first
degree child rape. Because counts 10 and 15 occurred after September 1, 2001, they are subject
to indeterminate sentences and fall under the jurisdiction of the Indeterminate Sentence Review
Board (ISRB) and the supervision of the Department of Corrections. RCW 9.94A.507. Thus,
those counts could result in additional incarceration with a maximum range of life.
Tyler appeals his sentence.
ANALYSIS
I. LEGAL PRINCIPLES AND STANDARDS OF REVIEW
A. Exceptional Sentences under the Sentencing Reform Act
The Sentencing Reform Act (SRA) of 1981, chapter 9.94A, generally requires that a
sentencing court impose a sentence within the standard sentencing range. RCW
2
The trial court imposed an exceptional minimum term for counts 10 and 15, and imposed an
exceptional sentence for all the other counts. For sake of brevity, we refer to the sentence as
“732.5 months to life.” The trial court ruled that “count 15 is to run consecutively to counts 8
and 19 (counts 8 and 19 shall run concurrent to each other only) and to counts 1, 2, 3, 4, 6, 10,
11, 14, 16, 17, 18, 20 (counts 1, 2, 3, 4, 6, 10, 11, 14, 16, 17, 18, 20 shall run concurrent to each
other only).” Clerk’s Papers at 309.
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9.94A505(2)(a)(i). The SRA was designed to provide a system for sentencing that “structures,
but does not eliminate, discretionary decisions affecting sentencing,” and to “ensure, in part, that
the punishment for a criminal offense is proportionate to the seriousness of the offense and
offender’s criminal history.” RCW 9.94A.010.
Trial courts consider seven policy goals when imposing a sentence:
(1) Ensure that the punishment for a criminal offense is proportionate to the
seriousness of the offense and the offender’s criminal history;
(2) Promote respect for the law by providing punishment which is just;
(3) Be commensurate with the punishment imposed on others committing
similar offenses;
(4) Protect the public;
(5) Offer the offender an opportunity to improve himself or herself;
(6) Make frugal use of the state’s and local governments’ resources; and
(7) Reduce the risk of reoffending by offenders in the community.
RCW 9.94A.010.
A trial court may only depart from the standard sentence range “if it finds, considering
the purpose of [the SRA], that there are substantial and compelling reasons justifying an
exceptional sentence.” RCW 9.94A.535. A departure from the standards governing whether
sentences for multiple counts run concurrently or consecutively under RCW 9.94A.589 is
considered an exceptional sentence and must meet the same standards. RCW 9.94A.535. If a
trial court determines that an exceptional sentence is appropriate, a reviewing court may reverse
the exceptional sentence only if it finds:
(a) Either that the reasons supplied by the sentencing court are not supported
by the record which was before the judge or that those reasons do not justify a
sentence outside the standard sentence range for that offense; or
(b) that the sentence imposed was clearly excessive or clearly too lenient.
RCW 9.94A.585(4).
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A defendant’s standard range sentence reaches its maximum limit at an offender score of
nine. RCW 9.94A.510. “Punishment” as contemplated by the exceptional sentence statutes is
“expressed in terms of total confinement time,” and not the mere fact of a conviction itself.
RCW 9.94A.530(1); State v. Alvarado, 164 Wash. 2d 556, 562, 192 P.3d 345 (2008).
A trial court may impose an aggravated exceptional sentence without a finding of fact by
a jury when it determines that the defendant has committed multiple current offenses and the
defendant’s high offender score results in some of the current offenses going unpunished. RCW
9.94A.535(2)(c).3 “In other words, if the number of current offenses results in the legal
conclusion that the defendant’s presumptive sentence is identical to that which would be
imposed if the defendant had committed fewer current offenses, then the court may impose an
exceptional sentence.” State v. France, 176 Wash. App. 463, 469, 308 P.3d 812 (2013).
B. Indeterminate Sentence Review Board
RCW 9.94A.507, titled “Sentencing of [S]ex [O]ffenders,” controls when sentencing
offenders who commit first and second degree rape of a child. If the offender is subject to
sentencing under section (3)(a) of this statute, the trial court is required to impose both a
minimum and maximum sentence. RCW 9.94A.507(3)(a). The maximum sentence is the
statutory maximum sentence for the offense under the cognizant criminal statute, and the
minimum sentence may be either within a standard range sentence for the offense or outside the
standard range as an exceptional sentence under RCW 9.94A.535. RCW 9.94A.507(3). RCW
3
Our Supreme Court in Alvarado expressly held that RCW 9.94A.535(2)(c) does not violate the
Sixth Amendment and that a trial court can, without a jury finding, impose an exceptional
sentence based on the “free crimes” doctrine. 164 Wash. 2d at 568-69.
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No. 53257-3-II
9.94A.507(3)(c) explicitly provides that the minimum term may be “outside the standard range
pursuant to RCW 9.94A.535, if the offender is otherwise eligible for such a sentence.”
The Department of Corrections, prior to the conclusion of the offender’s minimum
sentence, conducts an end of sentence review and evaluation of the offender based on
“methodologies . . . recognized by experts in the prediction of sexual dangerousness.” RCW
9.95.420(1)(a). At the expiration of the minimum term, the ISRB conducts a hearing to
determine whether the offender poses a risk of engaging in sex offenses if released to community
custody. RCW 9.95.420(3)(a). The offender shall be released, subject to the ISRB’s conditions,
“unless the [ISRB] determines by a preponderance of the evidence that, despite such conditions,
it is more likely than not that the offender will commit sex offenses if released.” RCW
9.95.420(3)(a). The ISRB “makes an informed prediction about whether it believes the offender
is likely to commit more sex offenses if released before the expiration of his or her maximum
sentence.” In re Pers. Restraint of McCarthy, 161 Wash. 2d 234, 244, 164 P.3d 1283 (2007). “If
the [ISRB] does not order the offender released, [the ISRB] must establish a new minimum term
for the offender as provided in RCW 9.95.011.” RCW 9.95.420(3)(a).
C. Review of Exceptional Sentences
RCW 9.94A.585(4) requires us to ask three questions, each with a different standard of
review.
1. Are the reasons given by the sentencing judge supported by evidence in the
record? As to this, the standard of review is clearly erroneous.
2. Do the reasons justify a departure from the standard range? This question is
reviewed de novo as a matter of law.
3. Is the sentence clearly too excessive or too lenient? The standard of review on
this last question is abuse of discretion.
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State v. Law, 154 Wash. 2d 85, 93, 110 P.3d 717(2005) (quoting State v. Ha’mim, 132 Wash. 2d 834,
840, 940 P.2d 633 (1997), overruled in part on other grounds by State v. O’Dell, 183 Wash. 2d
680, 696, 358 P.3d 359 (2015)).
II. ARGUMENTS
A. Finding That Tyler’s Current Offenses Would Go Unpunished Not Clearly Erroneous
Tyler argues that the record does not support the finding that his crimes would go
unpunished without imposition of an exceptional sentence. Specifically, Tyler argues that
because he “faced a lengthy and indeterminate standard sentence range,” and because the ISRB
would take into account his other offenses in determining the ultimate sentence imposed,
substantial evidence does not support the sentencing court’s finding. Br. of Appellant at 7. We
disagree.
We review whether the reasons given by the trial court are supported by evidence in the
record under a clear error standard. Law, 154 Wash. 2d at 93.
Regarding an indeterminate sentence, RCW 9.94A.507(3)(c) allows a trial court to set a
minimum term outside the standard range if the offender is eligible for such a sentence. And
under the “free crimes” doctrine, a trial court may impose a sentence outside the standard range
where a defendant’s current crimes would go unpunished through the imposition of a standard
range sentence. State v. Brundage, 126 Wash. App. 55, 67, 107 P.3d 742 (2005). This condition is
“automatically satisfied whenever ‘the defendant’s high offender score is combined with
multiple current offenses so that a standard sentence would result in ‘free crimes’—crimes for
which there is no additional penalty.’” Brundage, 126 Wash. App. at 66-67 (quoting State v.
Smith, 123 Wash. 2d 51, 56, 864 P.2d 1371 (1993)). The determination that some offenses would
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go unpunished without an exceptional sentence “rests solely on criminal history and calculation
of the offender score . . .” and RCW 9.94A.535(2)(c) “flow[s] automatically from the existence
of free crimes.” Alvarado, 164 Wash. 2d at 568-69.
Tyler’s argument ignores RCW 9.94A.507(3)(c). The legislature clearly recognized the
ISRB’s role when it provided that the trial court could set the minimum term outside the standard
range.
Moreover, Tyler’s argument misconstrues the purpose of the ISRB. RCW 9.95.420(3)(a)
creates a presumption of release for sex offenders unless “it is more likely than not that the
offender will commit sex offenses if released.” The conditionality of release set forth by the
legislature under this section addresses public safety, not punishment. The ISRB has no power
under the statute to prevent Tyler’s release for sake of punishment, and so the mere fact that the
ISRB may determine that an offender cannot be released for public safety sake is not a fact of
consequence for a trial court when making an RCW 9.94A.535(2)(c) analysis.
Moreover, only 2 of the 15 counts implicate the ISRB, so even if we agreed with Tyler on
this point, other crimes would go unpunished. The free crimes aggravator is triggered when
some of the current offenses would go unpunished, and because RCW 9.94A.535(2)(c) makes no
distinction between punished and unpunished crimes, all current offenses are subject to an
exceptional sentence. France, 176 Wash. App. at 470.
Tyler’s offender score of 46 substantially exceeded the statutory maximum of 9. RCW
9.94A.510. Starting with 4 points from his prior criminal history, and adding 3 points for each
current sex offense, had Tyler committed only 3 total offenses of the 15 for which he was
convicted, he would have been at 10 points and would have exceeded the maximum number of
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points for the sentencing range grid. Thus, 12 crimes would have gone unpunished and would
have failed to punish Tyler for any of the crimes perpetrated against 2 of his 3 victims. We hold
that substantial evidence supports the trial court’s finding that some of Tyler’s crimes would go
unpunished and that it was therefore not clearly erroneous.
B. “Free Crimes” Doctrine Justifies Departure
Tyler argues that his high offender score does not justify an exceptional sentence because
“the legislature already determined that his offenses required an indeterminate sentence,” and
that a trial court therefore cannot consider his high offender score as a factor. Br. of Appellant at
10. We disagree.
We review whether the reasons considered by the trial court justify an exceptional
sentence de novo. Law, 154 Wash. 2d at 93. We employ a two-part test to determine whether a
factor legally supports departure from the standard sentence range. Ha’mim, 132 Wash. 2d at 840.
First, a trial court may not base an exceptional sentence on factors necessarily considered by the
legislature in establishing the standard sentence range. Second, the asserted aggravating or
mitigating factor must be sufficiently substantial and compelling to distinguish the crime in
question from others in the same category. Ha’mim, 132 Wash. 2d at 840.
Here, the trial court justified its exceptional sentence based on the “free crimes” doctrine
through RCW 9.94A.535(2)(c), which is a circumstance the legislature did not intend to be
included in the concept of an indeterminate sentencing. This is evidenced by the fact that an
offender may receive an indeterminate sentence for only one crime and by the fact that the
indeterminate sentencing statute specifically provides that the trial court can set a minimum term
outside the standard range. RCW 9.94A.507(3)(c). Moreover, Tyler’s argument leads to an
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absurd result that would preclude a trial court from ever imposing an exceptional sentence in any
case where the ISRB had jurisdiction over even one conviction.
Without the exceptional sentence, Tyler’s convictions for 8 counts of first degree child
rape, 2 counts of second degree child rape, and 2 counts of first degree child molestation, would
receive no punishment. All of Tyler’s crimes committed from 1995 to 2002 would have gone
unpunished. Most of the abuse one victim suffered would have gone unanswered. Plus, all his
crimes against two other victims would have gone unpunished. The exceptional sentence is
consistent with the legislature’s stated purpose to “[e]nsure that the punishment for a criminal
offense is proportionate to the seriousness of the offense and the offender's criminal history.”
RCW 9.94A.010(1). Accordingly, we hold that the trial court’s imposition of an exceptional
sentence was justified under the “free crimes” doctrine.
C. Tyler’s Sentence Not Clearly Too Excessive
Tyler briefly argues that the trial court abused its discretion by imposing the exceptional
sentence because he would be more than 90 years old at the expiration of his minimum term, and
it is unreasonable to deprive the ISRB of its decision as to whether Tyler should serve out the
maximum life sentence. This argument fails.
We review whether or not a sentence is clearly too excessive for an abuse of discretion.
Law, 154 Wash. 2d at 93.
Again, Tyler misunderstands the purpose of the ISRB. The ISRB decides if an offender
cannot be released based on public safety, not on punishment. Punishment is the trial court’s
prerogative at sentencing. RCW 9.94A.010. This exceptional sentence reflects the full extent of
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Tyler’s crimes. We hold that this sentence was not clearly too excessive based on Tyler’s age,
and therefore not an abuse of discretion.
D. SAG
1. Imposition of Exceptional Sentence Not Unconstitutional Without Jury Finding of
Fact
In his SAG, Tyler argues that the resentencing court violated his Sixth Amendment jury
trial rights by imposing an exceptional sentence absent a jury finding that aggravating
circumstances justified such an exceptional sentence. We disagree.
This issue was similarly raised by Tyler in a prior appeal, and it was considered and
rejected. State v. Tyler, No. 50434-1-II, slip op. at 1 (Wash. Ct. App. Dec. 4, 2018)
(unpublished), http://www.courts.wa.gov./opinions/pdf./504341.pdf. For the reasons discussed
in that case, the sentencing court did not engage in impermissible fact finding when it imposed
an exceptional sentence, and Tyler’s Sixth Amendment claim fails.
2. Due Process Not Offended by Notice Requirement Violation
In his SAG, Tyler argues that the State failed to give him adequate notice before trial that
they were going to seek an aggravated sentence “in violation of [RCW 9.94A.537(1) . . . and due
process.” SAG 2. We disagree.
The SRA requires the State to provide notice that it will seek an exceptional sentence
based on aggravating circumstances, but it does not dictate how that notice is to be given. State
v. Siers, 174 Wash. 2d 269, 277, 274 P.3d 358 (2012). The state and federal constitutions provide
that a defendant receive adequate notice of the nature and cause of the accusation to allow him to
prepare an adequate defense. Siers, 174 Wash. 2d at 277. However, pretrial notice of the State’s
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intent to seek exceptional consecutive sentences on remand for resentencing is not required.
State v. McNeal, 156 Wash. App. 340, 357, 231 P.3d 1266 (2010).
Here, the State filed memoranda in support of its request for an exceptional sentence in
2002 at the first sentencing and in 2017 at the first resentencing. We hold that because Tyler
received adequate notice of the facts that could form the basis of his sentence and the State’s
intent to seek an exceptional sentence, Tyler was allowed adequate time to prepare his defense,
and the State fulfilled its constitutional duty.
3. Challenge to Trial Court’s Findings of Fact at Sentencing Not Timely
In his SAG, Tyler argues that the trial court erred in relying on a presentencing report
investigation without his or his representative’s participation. We disagree.
“In determining the appropriate sentence, the trial court can consider the presentencing
reports unless the defendant objects.” State v. Wakefield, 130 Wash. 2d 464, 476, 925 P.2d 183
(1996). “When the defendant fails to object to information presented at sentencing, that
information is deemed acknowledged.” State v. Reynolds, 80 Wash. App. 851, 860, 912 P.2d 494
(1996). “In order to dispute information in the [presentencing] report, the defendant must make
a timely and specific challenge.” State v. Atkinson, 113 Wash. App. 661, 669, 54 P.3d 702 (2002).
A review of the record shows that Tyler failed to make a timely objection to the trial
court’s consideration of the presentencing reports. At the resentencing hearing in 2019, Tyler
requested confirmation on the record that a presentencing investigation report was conducted
prior to the original sentencing in 2002. The trial court confirmed that it had, and Tyler did not
object to the report. Tyler raises the presentence report issue for the first time in his SAG. We
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hold that Tyler may not challenge for the first time on appeal the trial court’s consideration of the
presentencing reports.
CONCLUSION
We hold that (1) the finding that Tyler’s current offenses would go unpunished was
supported by substantial evidence, thus, was not clearly erroneous; (2) that the trial court’s
departure from the standard range was justified given that some of Tyler’s current offenses
would go unpunished; (3) Tyler’s sentence was not too excessive, thus, was not an abuse of
discretion; and (4) Tyler’s SAG raises no reversible error. Consequently, the trial court did not
err when it imposed an exceptional sentence and minimum term. Thus, we affirm Tyler’s
sentence.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW
2.06.040, it is so ordered.
______________________________
Worswick, P.J.
__________________________________
Melnick, J.
__________________________________
Glasgow, J.
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