No. 21247-5-IIIThe Court of Appeals of Washington, Division Three. Panel Seven.
December 9, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of Yakima County. Docket No: 99-1-02130-0. Judgment or order under review. Date filed: 06/18/2002.
Counsel for Appellant(s), James Edward Egan, Attorney at Law, 315 W Kennewick Ave, Kennewick, WA 99336-3827.
Counsel for Appellant(s), Anthony David Ply (Appearing Pro Se), P.O. Box 900, Shelton, WA 98584.
Counsel for Respondent(s), Kenneth L. Jr Ramm, Yakima County Courthouse, 128 N 2nd St. Rm 211, Yakima, WA 98901-2639.
KATO, A.C.J.
Anthony David Ply appeals his exceptional sentence for first degree felony murder and taking a motor vehicle without permission. He contends the court erred in finding the victim was particularly vulnerable, that he abused his position of trust to facilitate the crime, that the murder was deliberately cruel, and that he violated the victim’s zone of privacy. He also contends the court erred in imposing financial obligations. We affirm the sentence but remand the case for clarification of the amount of the financial obligation.
Mr. Ply pleaded guilty to stabbing 76-year-old Ethel Statler to death during a robbery in her Yakima home on December 15, 1999.[1] At the time of the crime, Mr. Ply worked for Ms. Statler’s son, Marvin, and was living with Marvin’s daughter, Bobbi. Mr. Ply had visited Ethel Statler’s home frequently and had mowed her lawn several times during the summer of 1999. Mr. Ply later told police Ms. Statler `was like my own grandmother.’ Ex. 15, at 5.
Ms. Statler suffered from emphysema and bronchitis, and her doctor had placed her on oxygen about a month before her death. A few days later, Mr. Ply had gone to Ms. Statler’s home for Thanksgiving dinner, and she had asked him what he wanted for Christmas.
In a statement to police shortly after the murder, Mr. Ply said he went to Ms. Statler’s home between 11 a.m. and noon on December 15. The two talked for a few minutes, and Ms. Statler went into the bathroom. Mr. Ply then went to the kitchen and got a knife. When Ms. Statler emerged from the bathroom, her oxygen hose got a kink, and he helped her with that and then pushed her into the bedroom, where her oxygen hose did not reach, and demanded that she write him a check. Ms. Statler grabbed a lamp and swung it at Mr. Ply, causing him to drop the knife, but he picked it up and pushed her face-down onto the bed. He stabbed her once in the back of the neck and `thought that that would take care of it.’ Ex. 15, at 10. Seeing Ms. Statler was not dead, he twisted the knife to the right and then to the left. But Ms. Statler still was breathing, so Mr. Ply cut her throat. He moved her to the floor, but he noticed Ms. Statler’s eyes were following him, so he stabbed her several times in the chest. He cut the phone cord, washed off the knife, took $60 to $75 and the keys from Ms. Statler’s purse, locked the door, and left in her car.
After a sentencing hearing,[2] the court found that (1) Ms. Statler was a particularly vulnerable victim, a fact of which Mr. Ply had knowledge; (2) Mr. Ply manifested deliberate cruelty; (3) Mr. Ply abused his position of trust; (4) Mr. Ply invaded Ms. Statler’s zone of privacy by robbing and killing her in her bedroom; and (5) Mr. Ply disabled Ms. Statler’s telephones, making it impossible for her to summon help. On the basis of these factors, the court entered an exceptional sentence of 720 months in prison. The court also held that it would order the same sentence if only one of the aggravating factors was found to be valid.
When a defendant challenges an exceptional sentence on grounds the sentencing court’s reasons are not supported by the record, the appellate court must determine whether the findings are clearly erroneous. State v. Tili, 148 Wn.2d 350, 358, 60 P.3d 1192 (2003); RCW 9.94A.585(4)(a).
Mr. Ply first contends there was insufficient evidence that Ms. Statler was particularly vulnerable.[3] See RCW 9.94A.535(2)(b) (aggravating factor if `defendant knew or should have known that the victim of the current offense was particularly vulnerable or incapable of resistance due to extreme youth, advanced age, disability, or ill health’). He relies on State v. Jackmon, 55 Wn. App. 562, 567, 778 P.2d 1079 (1989), in which the court held the evidence must establish that the disability `rendered the victim more vulnerable to the particular offense than a nondisabled victim would have been.’
There is overwhelming evidence that Ms. Statler was more vulnerable to Mr. Ply’s attack than a younger, healthier person would have been. She was a 76-year-old woman who weighed 90-pounds, suffered from emphysema, bronchitis, and coronary artery disease, and had to use oxygen to breathe. A person in this condition obviously is more vulnerable to attack than a younger, healthier person. See State v. Hooper, 100 Wn. App. 179, 183-84, 997 P.2d 936 (2000) (person using cane plainly more vulnerable than person who can walk without assistance). In fact, one of Ms. Statler’s doctors expressly testified that, because of her medical condition, Ms. Statler was less able to defend herself from an assault. The court’s finding is not clearly erroneous.
Mr. Ply next contends there was insufficient evidence he manifested deliberate cruelty. See RCW 9.94A.535(2)(a) (aggravating factor if `defendant’s conduct . . . manifested deliberate cruelty to the victim’). Deliberate cruelty is `gratuitous violence, or other conduct which inflicts physical, psychological or emotional pain as an end in itself.’ State v. Strauss, 54 Wn. App. 408, 418, 773 P.2d 898
(1989). The conduct must be “of a kind not usually associated with the commission of the offense in question.” State v. Payne, 45 Wn. App. 528, 531, 726 P.2d 997 (1986) (quoting State v. Schantzen, 308 N.W.2d 484, 487
(Minn. 1981)).
Although Mr. Ply contends there is no evidence he inflicted pain as an end in itself, several cases have found that repeated stabbings or more wounds than are necessary to accomplish the underlying crime demonstrate deliberate cruelty. He points out that the number of wounds alone does not demonstrate deliberate cruelty. State v. Serrano, 95 Wn. App. 700, 712-13, 977 P.2d 47 (1999). However, the manner in which the wounds are inflicted permits an inference that the crime was deliberately cruel. See State v. Lindahl, 114 Wn. App. 1, 16, 56 P.2d 589 (2002), review denied, 149 Wn.2d 1013 (2003); State v. Harmon, 50 Wn. App. 755, 760-61, 750 P.2d 664, review denied, 110 Wn.2d 1033 (1988). Mr. Ply pushed Ms. Statler into the bedroom (disconnecting her from her life-sustaining oxygen), then stabbed her in the back of the neck and twisted the knife right and left, then sliced her throat, then stabbed her several times in the chest. The wounds certainly were more than necessary to commit a robbery or even a murder. The obvious viciousness of the crime permits an inference of deliberate cruelty. The court’s finding is not clearly erroneous.
Mr. Ply next contends there was insufficient evidence he abused a trust relationship to facilitate the crime. See RCW 9.94A.535(2)(d)(iv) (aggravating factor if `defendant used his or her position of trust, confidence, or fiduciary responsibility to facilitate the commission of the current offense’); State v. Fisher, 108 Wn.2d 419, 427, 739 P.2d 683
(1987) (factor may be applied to noneconomic crimes). For this aggravating factor to apply, the trust relationship `need not be directly fiduciary or familial,’ Serrano, 95 Wn. App. at 713, but courts have `guarded against attempts to render the definition of a position of trust overly inclusive.’ State v. Grewe, 117 Wn.2d 211, 219, 813 P.2d 1238
(1991). In determining whether a trust relationship exists, a court should examine its duration and degree. Id. at 218. In Grewe, the court held that a relationship of only four months was sufficient to establish a position of trust. Several other cases make it clear, however, that more than a casual relationship is required. See Serrano, 95 Wn. App. at 714 (friend and former coworker); State v. Stuhr, 58 Wn. App. 660, 663-64, 794 P.2d 1297 (1990) (houseguest), review denied, 116 Wn.2d 1005 (1991).
Mr. Ply contends his relationship was merely casual, but there was evidence he considered Ms. Statler his grandmother, visited her home regularly, mowed her lawn several times, visited her home on Thanksgiving, and was included on her Christmas gift list. Perhaps most importantly, Ms. Statler allowed Mr. Ply into her home on the day of her death, even though she always kept her doors locked. These facts suggest a relationship closer than that in State v. Scott, 72 Wn. App. 207, 866 P.2d 1258 (1993), aff’d sub nom. State v. Ritchie, 126 Wn.2d 388, 894 P.2d 1308 (1995). The defendant in Scott did chores for the elderly victim and had access to her home because his mother was the victim’s caretaker. Scott, 72 Wn. App. at 211. The Scott court held those facts established a trust relationship. Id. at 218. Mr. Ply not only did chores for Ms. Statler, but he also had access to her home, visited her regularly for social or personal purposes, and considered her a member of his extended family. The court’s finding is not clearly erroneous.[4]
Mr. Ply also contends there was insufficient evidence he invaded Ms. Statler’s zone of privacy. See State v. Hicks, 61 Wn. App. 923, 929-30, 812 P.2d 893 (1991) (aggravating factor is defendant invaded victim’s zone of privacy). A victim’s bedroom may be a zone of privacy for purposes of this aggravating factor. State v. Collicott, 118 Wn.2d 649, 662, 827 P.2d 263 (1992); State v. Falling, 50 Wn. App. 47, 55, 747 P.2d 1119 (1987). The fact that the victim initially permitted the defendant into the home does not prevent reliance on this aggravating factor. See State v. Lough, 70 Wn. App. 302, 336, 853 P.2d 920 (1993), aff’d, 125 Wn.2d 847, 889 P.2d 487 (1995). Because Ms. Statler was killed in her bedroom, this factor applies here.
However, Mr. Ply contends the zone-of-privacy factor cannot apply here as a matter of law because residential burglary[5] was an uncharged crime. Although he does not cite any authority for the argument, he apparently relies on the real facts doctrine:
The real facts doctrine requires the sentencing court to base the defendant’s sentence on the defendant’s current conviction, criminal history, and the circumstances of the crime. State v. Coats, 84 Wn. App. 623, 626, 929 P.2d 507 [, review denied, 132 Wn.2d 1003] (1997); State v. Tierney, 74 Wn. App. 346, 350, 872 P.2d 1145 (1994)[, cert. denied, 513 U.S. 1172 (1995)]. The court may not base an exceptional sentence on facts wholly unrelated to the current offense or facts that would elevate the degree of crime charged above that of the charged crime. Tierney, 74 Wn. App. at 352. But the sentencing court may consider facts that establish elements of an additional uncharged crime when those facts are `part and parcel’ of the current offense. Tierney, 74 Wn. App. at 352.
State v. Van Buren, 112 Wn. App. 585, 600-01, 49 P.3d 966 (2002), review denied, 148 Wn.2d 1018 (2003).
Assuming residential burglary is a crime with which Mr. Ply could have been (but was not) charged, it was `part and parcel’ of the other crimes he committed while inside Ms. Statler’s home. Moreover, Mr. Ply could have entered or remained unlawfully in the home without entering the zone of privacy of Ms. Statler’s bedroom. The zone-of-privacy factor therefore applies.
The sentencing court’s findings are not clearly erroneous.[6]
Mr. Ply also contends the court erred in imposing financial obligations as part of the sentence. The court ordered Mr. Ply to pay restitution of $4,760.32, victim assessment of $500, court costs of $12,389.90, and attorney recoupment costs of $600. The total amount was $18,250.22.[7]
Mr. Ply apparently contends the financial obligations violate his right to due process because they are mandatory and because the sentencing court failed to take into account his financial circumstances. See State v. Curry, 118 Wn.2d 911, 915-16, 829 P.2d 166 (1992) (listing seven constitutional requirements for fee structure); but see State v. Blank, 131 Wn.2d 230, 239, 930 P.2d 1213 (1997) (questioning whether all of the articulated `features’ are `constitutionally necessary’).
However, the Supreme Court has held that mandatory fee assessments are not unconstitutional. Blank, 131 Wn.2d at 240-41. This is because a defendant’s rights are implicated only when the government attempts to recoup the fees, at which time the defendant is entitled to a show cause hearing to contest his ability to pay. Id. at 241-42.
[C]ommon sense dictates that a determination of ability to pay and an inquiry into defendant’s finances is not required before a recoupment order may be entered against an indigent defendant as it is nearly impossible to predict ability to pay over a period of 10 years or longer. However, we hold that before enforced collection or any sanction is imposed for nonpayment, there must be an inquiry into ability to pay.Id. at 242.
The sentencing court did not err in failing to examine Mr. Ply’s ability to pay the financial obligations.
The sentence is affirmed, but the case is remanded for clarification of a discrepancy in the amount of the financial obligation.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, J. and KURTZ, J., concur.