State Of Washington, Resp. v. David Lainez, App. ( 2015 )

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2015 JUL 27 m 10: 3
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 71702-2-1
Respondent,
v. DIVISION ONE
DAVID LAINEZ, UNPUBLISHED OPINION
Appellant. FILED: July 27, 2015
Leach, J. — David Lainez appeals the exceptional 60-month sentence
imposed by the trial court after he pleaded guilty to one count of felony stalking
with a rapid recidivism aggravating factor and two counts of assault in the fourth
degree. He argues that the sentence is clearly excessive. Because Lainez
stalked the same victim shortly after being released from custody on two prior
occasions, substantial and compelling reasons justified the exceptional sentence.
We conclude that the trial court did not abuse its discretion and affirm.
Background
David Lainez began stalking Katelyn Stockman in 2011. On May 15,
2012, he pleaded guilty to telephone harassment. When he was released from
jail the same day, an antiharassment order prevented him from having any
contact, including by telephone, with Stockman. The next day, Lainez contacted
Stockman in violation of this order. Although a Renton police officer spoke with
No. 71702-2-1/2
him about this violation, Lainez continued to violate the order, calling Stockman
again the following day.
On August 9, 2012, Lainez pleaded guilty to felony stalking, violation of an
antiharassment order, and nonfelony stalking. After serving a sentence for these
crimes, he was released on June 25, 2013. On June 29, Stockman saw Lainez
attempting to enter her workplace. Officers responded and arrested Lainez.
Lainez assaulted the arresting officers.
Lainez pleaded guilty to one count of felony stalking and stipulated to the
aggravating circumstance of rapid recidivism. Because Lainez had a prior felony
conviction and was under community custody at the time of the offense, Lainez
had an offender score of 2. This score produced a statutory standard sentencing
range of 13 to 17 months. The State recommended the statutory maximum of 60
months. The trial court imposed an exceptional sentence of 60 months. Lainez
appeals his sentence.
Analysis
Lainez claims that the trial court abused its discretion by imposing a
"clearly excessive" exceptional sentence.
The Sentencing Reform Act of 1981, chapter 9.94A RCW, allows a trial
court to impose a sentence outside the standard sentence range for the offense
when, considering the purpose of the act, it finds substantial and compelling
reasons justifying an exceptional sentence.1
RCW 9.94A.535.
No. 71702-2-1/3
We review a judgment imposing an exceptional sentence for abuse of
discretion.2 We look to see if the court based its sentence on untenable grounds
or reasons or imposed a sentence no reasonable judge would have imposed. To
reverse an exceptional sentence, this court must find either (1) the record before
the trial court does not support the reasons supplied by the court or that those
reasons do not justify an exceptional sentence or (2) the court imposed a "clearly
excessive" or "clearly too lenient" sentence.3 Circumstances "must truly
distinguish the crime from others of the same category" for the trial court to
impose an exceptional sentence.4
Aggravating circumstances that can support a sentence above the
standard range include those where "[t]he defendant committed the current
offense shortly after being released from incarceration."5 Lainez acknowledges
that this circumstance applied and justified a departure from the standard range.
Yet he also claims that his circumstances "were not sufficiently 'exceptional' to
distinguish him from others committing the crime of stalking." He identifies three
factors supporting this contention: (1) the sentence imposed is four times the low
end of the standard range and three times the high end, (2) he has only one prior
felony conviction, and (3) he has never been sentenced to a prison range term of
confinement.
2 State v. Branch. 129 Wn.2d 635, 649, 919 P.2d 1228 (1996).
3 RCW 9.94A.585(4).
4 State v. Tili, 148 Wn.2d 350, 369, 60 P.3d 1192 (2003).
5 RCW 9.94A.535(3)(t).
No. 71702-2-1/4
At the time of the commission of the crime, stalking carried a statutory
maximum sentence of 60 months.6 In State v. Zatkovich.7 Division Two of this
court affirmed a 60-month exceptional sentence for stalking where the trial court
found that domestic violence and a pattern of psychological abuse occurring over
a long period of time justified the exception. Here, also, circumstances
distinguish this crime from a "typical" incidence of stalking due to prolonged and
patterned behavior involving the same victim, renewed twice within days of being
released from jail for the same or similar behavior. The trial court found that
Lainez on two occasions stalked the same victim, each time shortly after the
State released him from custody. The trial court concluded that "[e]ach one of
these aggravating circumstances is a substantial and compelling reason,
standing alone, that is sufficient justification for the length of the exceptional
sentence imposed." We agree.
Conclusion
Because substantial and compelling reasons justify the 60-month
6 Former RCW 9A.46.110(5)(b) (2007); RCW 9A.20.021(c). In July 2013,
felony stalking became a class B felony, carrying a statutory maximum of 120
months. RCW9A.46.110(5)(b); RCW9A.20.021(b).
7 113 Wn. App. 70, 83, 52 P.3d 36 (2002).
No. 71702-2-1/5
exceptional sentence imposed by the trial court, the trial court did not abuse its
discretion, and we affirm.
WE CONCUR:
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