Man who raped 3-year-old gets 13-year sentence

A man who raped a 3-year-old boy twice and nearly killed the child was spared an above-standard sentence Thursday as a U.S. Supreme Court decision continued to play havoc in Washington courts.

Superior Court Judge Jerome Leveque emphasized that the standard maximum 131/3-year prison term he imposed on 26-year-old Cory G. Preston was the most he felt he was allowed to hand down.

Leveque cited a Supreme Court decision in June – involving a Grant County, Wash., man – that left Washington’s sentencing laws in shambles.

Deputy Prosecutor Kelly Fitzgerald planned to recommend an extra-tough sentence for Preston on grounds that his victim was especially vulnerable and that he violated a trust.

Preston was baby-sitting when he raped the boy with a sex device Oct. 8, 2002, and again nine days later.

Injuries from the first rape caused appendicitis-like symptoms, and the boy underwent an unnecessary appendectomy. The boy was recovering from the surgery when Preston raped him again.

The second rape tore the boy’s rectum, and he nearly died of internal bleeding.

Spokane police Detective Marty Hill urged Leveque to impose the maximum possible sentence, noting he had spoken during only one previous sentencing in his 20-year law-enforcement career.

“This case involves things that are our worst nightmares,” Hill said, calling Preston a remorseless pedophile. “He is the monster that children are afraid of.”

Fitzgerald argued that the sentence-limiting Supreme Court ruling didn’t apply in Preston’s case, but Leveque disagreed.

As a serious sex offender, Preston was sentenced under a different law from the one directly targeted by the high court’s ruling that defendants are entitled to have a jury determine facts used to justify above-standard sentences.

Under Washington’s 3-year-old indeterminate sentencing law for serious sex offenders, judges determine only minimum prison terms. Convicts remain under state control for the rest of their lives and are released from prison only if a parole board finds they are no longer dangerous.

Fitzgerald argued that the Supreme Court ruling applies only to sentences in which judges increase standard maximums – not to sentences determined solely by state law. Preston’s maximum sentence automatically was life, leaving Leveque free to impose any minimum he wanted, Fitzgerald argued.

But Leveque pointed out that the minimum would still be determined under the sentencing-guideline law the Supreme Court addressed.

“You still need the aggravating circumstances” to exceed sentencing guidelines, Leveque said. And aggravating factors have to be determined by juries.

He might have exceeded the guidelines anyway, on grounds that Preston chose a bench trial. Without a jury, Leveque convicted Preston in July of two counts of first-degree rape of a child and one count of first-degree assault of a child.

A few doors down the hall from Leveque’s courtroom, Judge Kathleen O’Connor recently ruled that a defendant who gave up his right to a jury trial also gave up his right to have a jury determine aggravating factors for sentencing. But Leveque ruled that Preston’s choice of a nonjury trial didn’t extinguish his right to a jury for sentencing purposes.

In another example of confusion created by Supreme Court ruling, Spokane County Superior Court Judge Linda Tompkins ruled Tuesday that the rule applies only to above-standard sentences, not below-standard.

Fitzgerald tried to pad Preston’s standard range by persuading Leveque to make Preston’s assault sentence consecutive to the related rape sentence. But Leveque agreed with Assistant Public Defender John Stine that the sentences had to be concurrent because they sprang from the same course of conduct.

Fitzgerald said she will appeal Leveque’s rulings.

She noted that the state Supreme Court is scheduled to hear a similar appeal in January.

That case is one of several in which judges have ruled that Washington’s sex-offender sentencing law is subject to the U.S. Supreme Court decision on above-standard penalties.