Judge won’t impose exceptional sentence
Home-care nurse Raymond Carl Hughes can’t receive extra punishment for violating a trust when he raped a completely helpless 12-year-old girl while she was in his care.
Spokane County Superior Court Judge Jerome Leveque ruled Wednesday that his hands are tied by a U.S. Supreme Court decision last summer that many judges believe prevents above-standard sentences.
Only a jury or Hughes himself can decide that Hughes, 35, violated a trust or did anything else to warrant extra punishment when he raped a quadriplegic girl who can’t move or speak.
Hughes was supposed to be taking care of the girl, who is dying of complications of cerebral palsy, when he raped her last April while working in her home as a registered nurse employed by Integrated Health Professionals.
Leveque ruled Wednesday that he lacks authority to empanel a jury to decide whether Hughes’ crime involved any aggravating factors that would warrant an above-standard sentence.
In addition to violation of a trust, aggravating factors might include unusual vulnerability of a victim or unusual cruelty by a perpetrator.
Judges made those decisions before the Supreme Court struck down part of Washington’s sentencing law in an appeal by Grant County, Wash., resident Howard Ralph Blakely Jr. The court said defendants are constitutionally entitled to have a jury decide all facts used to justify above-standard sentences.
Defendants may agree to give up that right, but Hughes didn’t do that. Instead, he pleaded guilty in October as charged, to one count of second-degree child rape and one count of standard second-degree rape.
Deputy Prosecutor Kelly Fitzgerald argued that defendants shouldn’t be able to strip prosecutors of the power to seek exceptional sentences by pleading guilty. She argued that judges are empowered to adopt procedures to implement the intent of the Legislature, including empanelling a special jury if necessary to protect a constitutional right.
But the constitutional right is the defendant’s, not the state’s, Assistant Public Defender Derek Reid said.
Division I of the Washington Court of Appeals has ruled in a Snohomish County case that judges may improvise procedures and empanel juries to consider aggravating factors. However, Division II has taken a different, if not contradictory, approach.
Anyway, Spokane County judges are required to obey only the appellate decisions of Division III, which hasn’t yet ruled on the issue.
“I believe I would be legislating if I intruded into the statute as it now exists,” Leveque said, citing disputes about how the Legislature should repair the law. “I believe, by law, I would be wrong and I would be reversed.”
Leveque said he will limit himself to the standard range when he sentences Hughes at a yet-unscheduled hearing. But he reserved judgment on a defense argument that could reduce the standard range from 81/2 to 111/3 years down to 61/2 to 81/2 years.
Assistant Public Defender George Caplan has argued that the two counts to which Hughes pleaded constitute double jeopardy because there was only one rape. Fitzgerald contends Hughes gave up his right to argue double jeopardy when he pleaded guilty.
Whatever sentence Leveque hands down, it will be the minimum Hughes must serve. Under state law for serious sex offenders, a parole board could keep Hughes in prison for the rest of his life if it determines he can’t safely be released.