State v. Nichols

1998 | Cited 0 times | Court of Appeals of Washington | March 3, 1998



Joel Thomas Nichols appeals the exceptional sentence entered on his conviction following a guilty plea to first degree child rape.1 He contends the findings of multiple penetrations, sophistication and planning, and zone of privacy are not valid reasons for imposing the exceptional sentence. He has also filed two consolidated personal restraint petitions challenging the validity of his guilty plea and the effectiveness of his trial counsel. But two of the court's reasons for the sentence are supported in the record and justify a departure from the standard range. Further, the challenges to the guilty plea and the effectiveness of counsel are without merit. Accordingly, we affirm the rape convictions and deny the personal restraint petitions.


The record indicates that Nichols first contacted 11-year-old A.K. by telephone. He identified himself as a telephone company employee, saying he needed to fix her phone. He obtained her address and went to her apartment. When A.K. let him in, he touched her, and she ran from him. Nichols overpowered her, forced her to the floor, and told her to remove her clothing. He threatened her and then removed her clothing. He took panties from his pack and ordered A.K. to put them on. She complied. He then removed a condom from his pack and put it on. He cut the underwear off of her with a knife and attempted to penetrate her vagina. She told him "no", that it hurt, so he turned her over and anally raped her. After ordering her to take a shower, he raped her anally again, and then raped her vaginally also. He again instructed her to take a shower, which she did. He then put the condom, wrapper, and panties into his pack, threatened her not to tell what he had done and left the apartment.

In entering his plea of guilty, Nichols acknowledged in court he had gone through all the "paperwork" with his counsel, understood the charges and the possibility of receiving the recommended sentence of 360 months. He answered in the negative the court's numerous questions about whether he had reservations about entering the plea.

The court imposed an exceptional sentence of 360 months for the rape. The court entered the following findings of fact:

1. There were multiple penetrations of A.K.

2. The crime involving A.K. involved a high degree of pre-planning, sophistication and premeditation, preparation and fully executed.

3. The crimes against A.K. occurred within a specific zone of safety in which she should have been entitled to be free from harm from strangers.

The court entered one Conclusion of law that "Each one of these factors, independently--on their own, justify an exceptional sentence on C{ount} 1 of 360 months."


This court reviews an exceptional sentence by determining (1) whether the reasons given for the sentence are supported by the evidence in the record under a "clearly erroneous" standard of review, (2) whether the reasons given justify a departure from the standard range "as a matter of law", and (3) whether the exceptional sentence is clearly excessive under an abuse of discretion standard.2

Nichols contends the court improperly considered multiple penetrations as an aggravating factor. He contends that one penetration justified one count of rape and that consideration of additional penetrations violated the "real facts" doctrine, RCW 9.94A.370(2).3 This contention is without merit.

Under the real facts doctrine, the court may not consider uncharged crimes as reasons for imposing an exceptional sentence, except upon stipulation. In this case the defendant so stipulated in Appendix C to the plea agreement,4 on which is checked the paragraph "REAL FACTS." That paragraph describes the two incidents of anal penetration. The act of vaginal penetration is described in the presentence report. Because the record indicates Nichols did not object to that section of the report, it is deemed "acknowledged" for purposes of RCW 9.94A.370(2) and was properly considered by the court at sentencing.

In sum, the court was well within its authority to consider the fact of multiple penetrations as a reason for imposing the exceptional sentence. This factor also justified the exceptional sentence.5

Next, Nichols challenges the finding that the rapes occurred in the child's zone of privacy or safety. He contends the Supreme Court has not recognized the validity of this factor and the factor is not valid absent a forcible entry by the assailant. These contentions are without merit.

Nichols asserts that the Supreme Court declined to address whether this is an appropriate factor in State v. Smith6 and State v. Batista,7 which did not involve sexual offenses. Merely because the Court did not address the reason under the particular facts of those cases does not mean that it is an invalid factor. In fact, the Court in State v. Collicott8 appeared to approve this basis for an exceptional sentence.

Furthermore, the zone of privacy factor in sexual offense cases is well established in appellate case law.9 Nichols fails to cite authority holding that a forcible entry is a necessary component of the zone of privacy factor. On the contrary, this court has held that voluntarily admitting the assailant does not preclude a finding that the zone of privacy was violated.10 The factor in this case is supported in the record and justifies an exceptional sentence.

The court correctly based the exceptional sentence on these two factors. Furthermore, it is clear that the court would have imposed the sentence on these factors alone, as it concluded that each factor independently justified the sentence. Therefore, we need not address Nichols's challenge to the factor of sophistication and planning.11


In order to obtain collateral relief, the petitioner must demonstrate either (1) actual and substantial prejudice arising from constitutional error, or (2) non-constitutional error that inherently results in a "complete miscarriage of Justice."12 Bare assertions and conclusory allegations are not sufficient to command judicial consideration and discussion in a personal restraint proceeding.13 Nichols has failed to meet this burden.

Nichols first argues he never "formally" entered a guilty plea in court. This contention is without merit. He formally entered a guilty plea by signing the statement on plea of guilty, which expressly stated that he pleaded guilty to the three charged crimes. In court he also acknowledged that he was prepared to enter the guilty plea, had no reservations about doing so nor any questions about the charges, and neither threats nor promises had induced his pleas. Because he fails to establish any defect in the entry of the guilty plea, there is no showing of error warranting relief.

Next, Nichols alleges his trial counsel was ineffective for failing to object to portions of the "real facts" as set out in the affidavit of probable cause and the Presentence Investigation Report. He also points out that the "Real Facts" box on the plea agreement was not checked,14 and he did not agree to the "real facts" as set out in appendix C to the plea agreement.15 His challenge to the court's consideration of these documents is without merit.

The record, when viewed as a whole, does not support Nichols's allegations. In court for entry of Nichols's plea, the prosecutor referred to the "real facts" to be considered at sentencing. At sentencing the prosecutor openly stated the parties had agreed that the court could consider the facts as contained in Appendix C, in addition to the affidavit of probable cause. Nichols spoke at length in his own behalf at sentencing but did not object to this statement. He briefly disputed statements that he used a knife and struggled with the victim; however, he did not dispute the evidence supporting the findings on the aggravating factors.

Appendix C appears in the appellate record as an attachment to the plea agreement, which Nichols signed. The plea agreement, State's Sentence Recommendation, and Appendix C all bear the same handwritten date of "8/8/95". They are contained in the sequentially numbered Clerk's papers filed in this court. Nichols's bare assertion that he did not see or agree to the appendix referred to at sentencing and included in the record is not sufficient to contradict what appears on the face of the record.16 Further, his failure to object at sentencing when the prosecutor stated he had agreed to consideration of Appendix C waived this argument.17

In sum, Nichols has failed to show his counsel's performance was deficient in failing to object to the "real facts." Nor has he shown that he was unaware of the "real facts." Consequently, he is not entitled to relief by way of the personal restraint petitions.

We affirm the judgment and sentence and deny the personal restraint petitions.

1. Nichols also pleaded guilty to first degree kidnapping and first degree child molestation of another victim, for which he received standard range sentences. He does not appeal those sentences.

2. State v. Johnson, 124 Wn.2d 57, 65-66, 873 P.2d 514 (1994).

3. RCW 9.94A.370(2) provides : In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknow ledged, or proved in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence. 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)(c), (d), (f), and (g).

4. Nichols' contention in a personal restraint petition that he did not agree to consideration of the facts in Appendix C. is discussed infra.

5. Vaughn, 83 Wn. App. at 677; State v. Hicks, 61 Wn. App. 923, 929, 812 P.2d 893 (1991).

6. 123 Wn.2d 51, 57 n.7, 864 P.2d 1371 (1993).

7. 116 Wn.2d 777, 790 n.8, 808 P.2d 1141 (1991).

8. 118 Wn.2d 649, 827 P.2d 263 (1992); see also State v. Lough, 70 Wn. App. 302, 853 P.2d 920 (1993), affirmed, 125 Wn.2d 847 (1995).

9. State v. Falling, 50 Wn. App. 47, 747 P.2d 1119 (1987); Hicks, 61 Wn. App. at 929.

10. State v. Lough, 70 Wn. App. at 336.

11. See State v.Negrete, 72 Wn. App. 62, 71, 863 P.2d 137 (1993), review denied, 123 Wn.2d 1030 (1994) (although two of sentencing court's three reasons for imposing exceptional sentence invalid, remand for resentencing not necessary because court explicitly stated it would impose the same sentence for any of the reasons standing alone).

12. In the Matter of the Personal Restraint of Cook, 114 Wn.2d 802, 803, 792 P.2d 506 (1990).

13. In the Matter of the Personal Restraint of Rice, 118 Wn.2d 876, 886, 828 P.2d 1086 (1992).

14The State refers to the failure to check this box as a "scrivener's error."

15. Based on the representations in Nichols's numerous pleadings before this court, we grant the State's motion to file an additional brief answering Nichols's "Reply Brief" and deny Nichols's motion to strike the State's answer.

16. See State v. McCorkle, 88 Wn. App. 485, 945 P.2d 736 (1997) (there is a strong presumption of the voluntariness of a guilty plea when the defendant completes the plea form and admits to reading it, understanding it and signing it).

17. See Baker v. United States, 781 F.2d 85, 90 (6th Cir. 1986) (failure to object to government's statement at sentencing that allegedly violated plea agreement constituted waiver).

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