Mr. Greatreaks appealed his exceptional virtual life sentence for Rape of a Child in the First Degree and two counts of Child Molestation in the First Degree. He argued an usual theory: he was constructively denied legal counsel! The authority he utilized was U.S. v. Cronic, 466 U.S. 648 (1984). Mr. Greatreaks argued his defense attorney failed to really advocate for him at his sentencing hearing for his plea agreement. Division II strongly disagreed.
Mr. Greatreaks had serious behavior control issues. He was charged in a ‘net nanny’ sting (i.e. undercover officer poses on the internet as an underage child seeking sex) with multiple sex offense. While on pre-trial release for that case, he was accused of egregious “hands-on” sex offenses against a 9-year-old boy. The boy was forced to have sex with Mr. Greatreaks and the boy’s mother, Mr. Greatreaks’ girlfriend. As a part of a global plea agreement, Mr. Greatreaks plead guilty to seven counts in the ‘nanny’ case. He was initially charged with 8 counts in the “hands-on” case. A global settlement involved dropping 5 of these counts, with an agreed minimum sentence of 300 months. All time on all counts from both cases would run concurrently. The ‘nanny’ case had a minimum of 180 months. Mr. Greatreaks was expecting a 300 month sentence.
The superior court judge sentenced both cases at the same hearing. The State prosecutor urged the court to adopt the plea agreement reached between the parties and did nothing to undermine the plea agreement, stating as follows:
I think the resolution that we’ve reached holds the defendant accountable, and it is a benefit to the State in that the victim doesn’t have to relive these things, nor would he have to testify, potentially, against his own mother. Which I think would have been a very difficult thing to have occurred, given the things I know about the case.
So while the crimes that are at issue, especially the second case, are very disturbing, and I think there’s no way you get around that, this plea resolution allows this case to be resolved, and it significantly punishes the defendant. And that’s why I’ve agreed to it. So I’d ask the [c]ourt to adopt the agreement that the parties have reached. [Emphasis added]
After the sentencing court judge heard truly heart-rendering testimony from the young victim, the defense counsel spoke next. He explained that Mr. Greatreaks’ first case had been “dragging on for quite some time” and that he was Greatreaks’ third attorney on the case. VRP at 21. Despite this and despite the complexities in both of Greatreaks’ cases, the defense explained that they were able to negotiate an acceptable plea agreement with the State. Defense counsel stated,
And as [the State] indicated, we have talked multiple times and negotiated quite a bit on both of these cases, and they are agreed recommendations in all respects with regard to both cases.
VRP at 21. Defense counsel made no further statement.
When the superior court judge imposed its sentence, he departed from the parties’ agreed recommendation. While the judge agreed to the proposed minimum sentences in the plea agreement, he imposed an exceptional sentence by running the sentences for the two cases consecutively, instead of concurrently, for a total of 480 months. The court explained,
The departure is that, rather than run all of these concurrent, I am going to find substantial and compelling reasons to depart from the guidelines, and under 9.94A.535(2)(c), which indicates that the [c]ourt can impose an exceptional sentence when the defendant has committed multiple current offenses and the defendant’s high offender score results in some of the current offenses going unpunished.
[Greatreaks] has nine-plus points on each of these. I didn’t count how many exactly he had on each of these counts, but each of them is nine-plus. And so I’m going to run Count[] I of the [first case] and Count III of the [second case] consecutive as an exceptional sentence.
Mr. Greatreaks did not allege ineffective assistance of counsel under Stickland v. Washington, 466 U.S. 668 (1984). He claimed his counsel’s few words were so sparse that he was constructively denied counsel under Cronic, because his counsel “entirely failed to subject the prosecution’s case to meaningful adversarial testing”. Cronic, at 658.
While denying Mr. Greatreaks’ analysis, Division 2 recognized Cronic’s reasoning is logical when defense counsel is silent in the face of the state presenting evidence against the defendant, such as presenting aggravating factors for an exceptional above range sentence and the defense doesn’t reply. Greatreaks, at pg. 8. Here, the plea agreement was a joint sentencing recommendation that the State and Defense were “obligated to support”, and did so.
There were egregious facts in Mr. Greatreaks’ case, and the prosecution did not highlight them. The prosecutor did not personally disparage Mr. Greatreaks, and gave his personal endorsement of the agreed recommendation. There was no clear need for defense counsel to advocate for the plea agreement because the State had just done so; there was no adversarial litigation involved. It was a “viable strategy to let the Government do the talking” at an agreed sentencing. Division 2 held that “sometimes advocacy in a particular set of circumstances requires defense counsel to say less.” Greatreaks, at pg. 11. No Cronic violation.
Because Mr. Greatreaks’ point total was well above the maximum of ‘9’, the Court upheld the exceptional 480 months (40 years) sentencing under RCW 9.94A.535(2)(c), because his crimes were “horrific” and would otherwise be “unpunished” because of his high score.
This writer empathizes with Mr. Greatreaks’ defense counsel, who, upon hearing the Court’s 40 years exceptional sentence, undoubtedly thought “should I have advocated more, even though it was an ‘agreed-upon’ deal”. Since this is a case originating in less metropolitan Lewis County, Washington, the defense lawyer undoubtedly knew local practice, including the whims of the sentencing judge, who identified himself as “having served many years as the [county] prosecutor”. There was no error by Mr. Greatreaks’ attorney.