                                                                                                  Filed
                                                                                            Washington State
                                                                                            Court of Appeals
                                                                                             Division Two

                                                                                              June 18, 2019


    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                          DIVISION II
 STATE OF WASHINGTON,                                                  No. 51431-1-II

                         Respondent,

           v.

 TIMOTHY LLOYD MENZIES, JR.,                                    UNPUBLISHED OPINION

                         Appellant.


       SUTTON, J. — Timothy Lloyd Menzies, Jr., appeals from his exceptional sentences

following his guilty plea convictions to two counts of first degree rape of a child (domestic

violence) stemming from his prolonged and repeated sexual abuse of his biological daughter KE

and his stepdaughter KM and from the court’s imposition of mandatory legal financial obligations

(LFOs). The trial court imposed exceptional minimum sentences on each conviction based on

three aggravating factors: abuse of a position of trust, ongoing pattern of sexual abuse as

manifested by multiple incidents over a prolonged period of time (multiple incidents), and multiple

victims.

       We hold that (1) the trial court’s reliance on the multiple incidents aggravating factor was

not error, (2) because the State charged Menzies with crimes against each victim, the multiple

victim aggravating factor was improper, and (3) reversal of the exceptional sentences and remand

for resentencing is appropriate because the record is not sufficiently clear to establish that the trial
No. 51431-1-II


court would have imposed the same exceptional sentences without the multiple victim aggravating

factor.1 In addition, on remand the trial court should address the LFOs under the current law.

                                              FACTS

                                       I. ORIGINAL CHARGES

       In June 2016, KM’s mother contacted law enforcement and reported that her six-year-old

daughter KM had disclosed that Menzies, KM’s father, had sexually abused her. Based on KM’s

allegations, the State originally charged Menzies with two counts of first degree rape of a child

and two counts of first degree child molestation. The declaration for determination of probable

cause supporting these charges stated that during a forensic interview, KM had revealed that

Menzies had forced her to engage in oral sex and other sexual contact “multiple times” for more

than a year. Clerk’s Papers (CP) at 1.

       After Menzies’s arrest, his 12 year old stepdaughter KE disclosed that Menzies had

engaged in oral, vaginal, and anal sexual intercourse with her. KE stated that the sexual abuse

started when she was about five years old and the incidents occurred several times a week,

sometimes more than once in a single night, until Menzies’s arrest.            Based on these new

allegations, the State amended the information to include four more charges: three counts of first

degree rape of a child and one count of second degree rape of a child.




1
  Menzies originally argued that the trial court also erred when it failed to enter written findings
of fact and conclusions of law supporting the exceptional sentence. The trial court has entered
the written findings, so this argument is moot.


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No. 51431-1-II


                               II. GUILTY PLEAS AND STIPULATION

       Menzies pleaded guilty to two counts of first degree rape, one for each victim, as charged

in the second amended information. In his statement of defendant on plea of guilty, Menzies stated

that he had committed the crimes and admitted facts related to three aggravating factors: abuse of

trust, multiple offenses per victim, and multiple victims. .

       Menzies also entered a waiver of his right to a jury trial on the aggravating factors. In this

waiver, Menzies agreed to allow the trial court to rely on the statement of probable cause, the

State’s sentencing memorandum, the recitation of the facts by the State at the guilty plea hearing,

the victim impact statements, and the victims’ statements in open court to establish the aggravating

circumstances and to determine “whether the facts provide substantial and compelling reasons” to

impose exceptional sentences. CP at 30.

       The trial court permitted the State to file the second amended information, which charged

Menzies with two counts of first degree rape of a child (domestic violence), one for each child.

The information alleged that the offense against KM occurred over a two-year, three-month period

and the offense against KE occurred over a six-year period. Following a colloquy, the trial court

found a factual basis for the pleas and accepted Menzies’s guilty pleas. The case then proceeded

to sentencing.

                                         III. SENTENCING

       At sentencing, Menzies argued that the trial court should not consider the abuse of trust or

multiple victim aggravating factors because they were already reflected in the charges. He did not

challenge the multiple incidents aggravating factor.




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No. 51431-1-II


       The trial court orally addressed all three of the aggravating factors:

               This is a defendant who was in the position of trust and authority as a parent
       or stepparent to the two victims.

               The pattern of abuse was excessive, as if any abuse wouldn’t be excessive.
       But even in that context, this pattern of abuse was incredibly excessive, daily
       patterns, oftentimes more than once a day, lasting for years. Done with threats of
       violence and terror and even the threat of death.

               Now that the defendant has been caught he recognizes his shortcomings.
       Frankly, it’s impossible for this Court to believe that the very first incident, the very
       first moment, the very first opportunity, the very first inclination he wouldn’t have
       recognized the damage he was about to do.

               If I had the power I certainly would be removing the pain from these
       children, the ugliness in their lives, which are going to last for a heck of a lot more
       than the sentence I’m going to impose in this case. It will last the rest of their lives;
       and by the way, probably through your grandchildren’s lives and possibly through
       their grandchildren as well.

               This pattern goes on and on and on. It does not stop. Hopefully, they’ll get
       the help they need. The damage is really unmeasurable. There’s no word for it.

               An exceptional sentence is really called out for in this case. The Legislature
       set some parameters for us to take a look at. They mean doggone well that we
       follow those parameters unless there is exceptions.

               There is exceptions here. This was abuse of trust, multiple victims. Yes,
       the two victims are multiple victims. There are two crimes. They’re also multiple,
       because every doggone day they were a victim again. Multiple victims, multiple
       times; and the power of authority and trust, coupled with threats of violence and
       death.

               240 months confinement counts I and II[.2]

RP at 45-46 (emphasis added). The trial court did not, however, expressly state that it would have

imposed the same sentences if one or more of the aggravating factors were not present.



2
 The standard range minimum sentence based on Menzies’s offender score of zero points was
120 to 160 months.


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No. 51431-1-II


         The trial court later entered written findings of fact and conclusions of law addressing the

exceptional sentence. The trial court found,

         4. The defendant is the stepfather of K.E. and the biological father of K.M. The
         defendant occupied a position of trust with respect to both K.E. and K.M.

         5. The defendant engaged in multiple acts of sexual intercourse with both K.M.
         and K.E. The sexual abuse of K.M. and K.E. was excessive, lasted for years,
         occurred on a daily or more than once daily basis and included threats of violence.

         6. There are multiple victims in this case.

CP at 102. The trial court also incorporated its oral ruling by reference.

         Based on these findings, the trial court concluded that the facts supported each of the three

aggravating factors and that each of these factors were substantial and compelling reasons to

impose an exceptional sentence. The trial court imposed a sentence of 240 months to life on each

count.

         The trial court also addressed LFOs. The trial court declined to impose any discretionary

LFOs, but it imposed mandatory LFOs including a $200 criminal filing fee. The trial court also

ordered that the LFOs would bear interest from the date of the judgment and sentence.

         Menzies appealed his exceptional sentences, the $200 criminal filing fee, and the LFO

interest provision.

                                             ANALYSIS

                                    I. EXCEPTIONAL SENTENCES

         Menzies argues that (1) the multiple incidents aggravating factor was improper because the

unit of prosecution for first degree rape of a child is each act of sexual intercourse or penetration

and he pleaded guilty to only one charge per victim, (2) the multiple victims aggravating factor




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No. 51431-1-II


was improper because there were separate charges for each victim, and (3) these errors require

resentencing because it is not clear that the trial court would have imposed the same sentences

without these aggravating factors.

A. LEGAL PRINCIPLES

       To reverse an exceptional sentence, we must find, “(1) under the ‘clearly erroneous’

standard, the reasons for departure from the presumptive range are not supported by the record;

[or] (2) as a matter of law, the stated reasons do not justify the exceptional sentence.”3 State v.

Hutsell, 120 Wn.2d 913, 916, 845 P.2d 1325 (1993). We may, however, affirm an exceptional

sentence when it is clear from the record that the trial court would have imposed the same sentence

based on any remaining aggravating factors that are upheld. State v. Jackson, 150 Wn.2d 251,

276, 76 P.3d 217 (2003); State v. Gaines, 122 Wn.2d 502, 512, 859 P.2d 36 (1993).

B. MULTIPLE INCIDENTS

       Menzies argues that the trial court’s reliance on the multiple incidents aggravating factor

was improper because the unit of prosecution is each act of sexual intercourse or penetration and

he pleaded guilty to only one charge per victim. We disagree that the trial court could not consider

multiple incidents in imposing the exceptional sentence.

       RCW 9.94A.530(3) gives the trial court the authority to consider facts related to additional

crimes in this circumstance. RCW 9.94A.530(3) provides, in part: “Facts that establish the

elements of a more serious crime or additional crimes may not be used to go outside the standard




3
  The third ground upon which an appellant can challenge an exceptional sentence is if the sentence
is clearly excessive. State v. Hutsell, 120 Wn.2d 913, 916, 845 P.2d 1325 (1993). Menzies does
not argue that the sentence was clearly excessive.


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No. 51431-1-II


sentence range except . . . when specifically provided for in RCW 9.94A.535(3). . . (g).” (Emphasis

added.) The multiple incidents aggravating factor is codified under RCW 9.94A.535(3)(g). Thus,

RCW 9.94A.530(3) expressly allowed the trial court to consider “[f]acts that establish the elements

of a more serious crime or additional crimes” in imposing the exceptional sentence based on the

multiple incidents aggravating factor.

       Menzies relies on State v. Vaughn, 83 Wn. App. 669, 677, 924 P.2d 27 (1996), State v.

Armstrong, 106 Wn.2d 547, 550, 723 P.2d 1111 (1986), and State v. Dunaway, 109 Wn.2d 207,

219, 743 P.2d 1237, as amended by 749 P.2d 160 (1988), for the premise that the multiple incidents

must take place “during the course of the incident underlying the charged crime.” Opening Br. of

Appellant at 11. Although each of these cases involved a single charge based on a series of

incidents that occurred over a shorter period of time than is the case here, none of these cases

require that the multiple incidents that are the basis for the aggravating factor must occur during a

single act or a specified period of time.4

       Because RCW 9.94A.530(3) expressly allows the trial court to consider additional crimes

when evaluating the multiple incidents aggravating factor, Menzies fails to show that the trial

court’s reliance on the multiple incidents aggravating factor was clearly erroneous or that this

aggravating factor was improper as a matter of law.




4
  Armstrong and Dunaway also address a nonstatutory aggravating factor, not the multiple
incidents aggravating factor at issue here. Armstrong, 106 Wn.2d at 550; Dunaway, 109 Wn.2d
at 219.


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No. 51431-1-II


C. MULTIPLE VICTIMS

       Menzies further argues that the multiple victims aggravating factor was improper as a

matter of law because the State filed charges related to each of the victims. The State concedes

that the trial court’s reliance on this aggravating factor was improper.

       The multiple victim aggravator is not available when, as here, the State had filed charges

for each victim. State v. Bourne, 90 Wn. App. 963, 976, 954 P.2d 366 (1998) (citing State v. Flake,

76 Wn. App. 174, 184, 883 P.2d 341 (1994)), see also State v. Modest, 88 Wn. App. 239, 252, 944

P.2d 417 (1997). Accordingly, we accept the State’s concession and hold that the trial court erred

by considering the multiple victims aggravating factor as a matter of law.

D. RESENTENCING REQUIRED

       We must next address whether Menzies is entitled to resentencing. We hold that reversal

of the exceptional sentences and remand for resentencing is required.

       “Where the reviewing court overturns one or more aggravating factors but is satisfied that

the trial court would have imposed the same sentence based upon [the remaining factor or factors],

it may uphold the exceptional sentence rather than remanding for resentencing.” Jackson, 150

Wn.2d at 276. It must, however, be “clear whether the trial court would have imposed an

exceptional sentence on the basis of only the [factors] upheld.” Gaines, 122 Wn.2d at 512

(emphasis added) (citing State v. Henshaw, 62 Wn. App. 135, 140, 813 P.2d 146 (1991)).

       The required clarity often comes from an express statement by the trial court that a single

factor alone would be a “sufficient basis for the exceptional sentence imposed.” State v. Harding,

62 Wn. App. 245, 250, 813 P.2d 1259 (1991). But, lacking such an express statement, the record

must, at a minimum, allow us to conclude that the trial court would have imposed the same



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No. 51431-1-II


sentence based on the remaining aggravating factor or factors without engaging in speculation.

See State v. Weller, 185 Wn. App. 913, 344 P.3d 695 (2015).

       Here, the record shows that the trial court initially discussed only the abuse of trust and

multiple incidents aggravating factors and concluded that these factors supported exceptional

sentences. Because the trial court stated that these two factors would support exceptional sentences

before mentioning the third factor, multiple victims, we do not have to speculate to hold that the

trial court would have imposed exceptional sentences based on fewer than all three aggravating

factors. But because the trial court also acknowledged the number of victims aggravating factor

before announcing the length of the exceptional sentences without stating how this additional

factor influenced its final sentencing decision, “we would need to speculate to hold that the trial

court would have imposed the same exceptional sentences based on only the [remaining]

aggravating factor[s].” Weller, 185 Wn. App. at 931 (emphasis added). Accordingly, we reverse

Menzies’s exceptional sentences and remand this matter back to the trial court for resentencing

without the multiple victims aggravating factor.

                                             II. LFOs

       Menzies also argues that under the current law we should vacate the $200 criminal filing

fee because he is indigent and strike the LFO interest provision. Because we are already remanding

for resentencing, the trial court should reconsider the LFOs in light of the current law.




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No. 51431-1-II


                                         CONCLUSION

        We reverse the exceptional sentences and remand to the trial court for resentencing

without considering the multiple victim aggravating factor. On remand, the trial court should

reconsider the LFOs in light of the current law.

        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.



                                                        SUTTON, J.
 We concur:



 MELNICK, P.J.




 CRUSER, J.




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