Opinion
No. 24068-1-III.
Filed: April 18, 2006.
Appeal from Superior Court of Adams County. Docket No: 04-1-00126-9. Judgment or order under review. Date filed: 03/24/2005. Judge signing: Hon. Richard W. Miller.
Counsel for Appellant(s), Dennis W. Morgan, Attorney at Law, 120 W Main Ave, Ritzville, WA 99169-1408.
Counsel for Respondent(s), Barrett Jonas Scudder, Adams County Prosecutors Office, 210 W Broadway Ave, Ritzville, WA 99169-1860.
John F. Strohmaier, Attorney at Law, PO Box 490, 24 W First Ave, Odessa, WA 99159.
UNPUBLISHED OPINION
On June 1, 2004, Tyson Martel, age 21, had sexual intercourse with 14-year-old C.L. Mr. Martel was convicted of third degree child rape. He was sentenced to 31 months incarceration and 36 to 48 months community custody. On appeal, Mr. Martel contends the court erred by imposing a sentence in excess of the statutory maximum. He also contends the third degree rape statute, RCW 9A.44.079, is unconstitutional because consent is not allowed as a defense. We affirm Mr. Martel's conviction and remand for resentencing.
Analysis
1. Did the court err by imposing of the maximum term allowed under the Sentencing Reform Act of 1981?
Mr. Martel was convicted of third degree child rape. Third degree child rape is a class C felony. RCW 9A.44.079 (2). Under RCW 9A.20.021 (1)(c), a person convicted of a class C felony cannot be confined for a period exceeding 5 years. With some exceptions relating to restitution, a sentence may not exceed the statutory maximum. RCW 9.94A.505 (5). Here, the court imposed a 31-month term of confinement and a term of community custody of 36 to 48 months. These terms total 67 to 79 months and exceed the statutory maximum of 60 months.
When a trial court imposes a sentence beyond the statutory maximum, this court must remand for amendment of the judgment and sentence to expressly provide for the correct term of community placement. State v. Sloan, 121 Wn. App. 220, 223-24, 87 P.3d 1214 (2004). In some circumstances, the sentencing court may set forth the maximum sentence and explain that the total of the term of incarceration and the term of community custody cannot exceed the statutory maximum. Id. Consequently, this case must be remanded for resentencing.
2.) Does the State's failure to allow consent as a defense to third degree child rape violate the Fourteenth Amendment to the U.S. Constitution and article 1, section 12 of the Washington Constitution?
Mr. Martel was convicted of rape of a child in the third degree under RCW 9A.44.079 . A defendant is guilty of this crime if he or she has sexual intercourse with a person who is at least 14 years old, but less than 16, and not married to the defendant, and the defendant is at least 48 months older than the victim. RCW 9A.44.079 (1). Here, the victim was 14 years old, and Mr. Martel was 21 years old, when the rape occurred. Consent is not allowed as a defense under RCW 9A.44.079, but consent is a defense under the general rape statutes, RCW 9A.44.040-.060.
Minimum scrutiny is applied when a party asserts that a statutory classification violates equal protection by causing the deprivation of the right to physical liberty. State v. Danis, 64 Wn. App. 814, 820, 826 P.2d 1096 (1992). The party challenging a statutory classification under the minimum scrutiny standard bears the burden of proving the classification unconstitutional beyond a reasonable doubt. Id.
Mr. Martel asserts RCW 9A.44.079 is unconstitutional because consent is not allowed as a defense. He maintains that RCW 9A.44.079 violates his equal protection rights by depriving him of his liberty interest under a provision that considers the age differential between the victim and the perpetrator, but does not provide for an individual determination as to the victim's ability to consent. According to Mr. Martel, the legislature has established factors to determine whether a child understands right from wrong, whether a child has the capacity to commit a crime, and whether a child has the competency to testify as a witness. Mr. Martel maintains that these standards set forth factors that could be used to determine whether a sexual encounter with a child was consensual. Mr. Martel further contends that this determination must be made on an individual basis by a fact finder.
A decision by this court is dispositive. In State v. Heming, 121 Wn. App. 609, 611, 90 P.3d 62 (2004), review denied, 153 Wn.2d 1009 (2005), Mr. Heming made arguments similar to those made here. Mr. Heming was 37 years old when he was charged with the third degree rape of a 14-year-old child. This court, applying the minimum scrutiny test, concluded that the classifications in RCW 9A.44.079 drew a rational distinction `between older, potentially predatory persons and younger, less mature persons in the victim's age group.' Id. at 612. More importantly, the court also concluded that the distinction between the classifications was `not wholly unrelated to the legitimate interest of protecting children from sexually predatory adults.' Id. The court further explained that the child rape statutes advanced the State's legitimate interest in protecting children who were too immature to consent. Id.
Heming also addressed the argument that a child's ability to consent is a factual determination requiring the consideration of the child's individual characteristics by a fact finder. In response to this argument, the court emphasized the State's strong interest in limiting the activities of children who were unable to make mature decisions. Id. at 613. The court also noted that an after-the-fact determination of a child's ability to consent would be an imperfect guide to the victim's behavior. Similarly, the court expressed concern that any subjective inquiry into a child's level of maturity was impossible in practice. Id. In light of these considerations, Heming concluded that `the legislature is thus permitted to create a classification that does not `perfectly correspond with the capacity of minors to act as adults." Id. at 614 (quoting Koome, 84 Wn.2d 901, 911, 530 P.2d 260 (1975).
In summary, Mr. Martel has failed to establish that RCW 9A.44.079 is unconstitutional beyond a reasonable doubt.
We affirm the conviction, but remand for resentencing.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW
SCHULTHEIS, A.C.J., and KATO, J., concur.
Judge Philip J. Thompson is serving as judge pro tempore of the Court of Appeals pursuant to RCW 2.06.150 .