State v. Putman

1

STATE OF WASHINGTON, Respondent, v. DAVID M. PUTMAN, Appellant.

No. 84862-3-I

Court of Appeals of Washington, Division 1

September 3, 2024

UNPUBLISHED OPINION

Mann J.

David Putnam was convicted of three counts of first degree rape of a child, one count of first degree child molestation, and one count of second degree child molestation. This court affirmed his convictions but remanded for resentencing. Putman remained silent during his resentencing and the trial court imposed a standard range sentence. Putman again appeals and argues the trial court improperly considered his silence at resentencing in violation of his constitutional right against self-incrimination. Putman also challenges several conditions of community custody, the duration of the sexual assault protection order, and the imposition of certain legal financial obligations (LFOs). We affirm Putman's standard range sentence and remand to correct only the sentencing errors discussed below.

I

In 2016, Putman was charged with three counts of first degree rape of a child, one count of first degree child molestation and one count of second degree child molestation of his daughter A.P. The charges were based on events from the time A.P. was born in 1993, until her twelfth birthday. In 2016 Putman turned himself in to police and admitted to grooming A.P., touching her breasts and vagina, and having her perform oral sex on him. A jury found Putnam guilty on all counts and he was sentenced to concurrent indeterminate sentences of 270 months to life for the rape convictions, 198 months to life for the first degree child molestation, and a determinate sentence of 116 months for the second degree child molestation. The trial court also imposed lifetime community custody and a sexual assault protection order (SAPO) prohibiting Putman from contact with A.P. until 2119.

We affirmed Putnam's convictions, but remanded for resentencing based on the version of the Sentencing Reform Act of 1981, ch. 9.94A RCW, in effect at the earliest moment the crimes could have occurred and to adjust the duration of community custody and the SAPO accordingly. State v Putman, 21 Wn.App. 2d 36, 55, 504 P.3d 868 (2022). Resentencing was also "required to recalculate Putman's offender score . . . to set Putman's early release rate at 15 percent . . . [and] to strike the random urinalysis community custody condition because it is not crime-related." Putman, 21 Wn.App. 2d at 52 n.40.

On remand, the State identified the standard range of 210 to 280 months for the three counts of first degree child rape and sought a sentence of 270 months. Putman sought a sentence of 210 months.

At the resentencing hearing, A.P., her brother, and their mother submitted victim impact statements which were read aloud by the prosecutor. The statement of A.P.'s mother included quotes from letters she received from Putman:

The main thing to be considered is his state of mind, and if it is safe for him to be free. I will use his own words from the letters he wrote since he was convicted to show that the answer continues to be no. These are quotes from his letters. Quote, 'I was shocked by the jury's decision and even more shocked by the total abandonment of my family . . .

I thought each of you, including [A.P.], would realize that either most of her memories were false memories, or she would realize she had allowed her revenge to go too far,' unquote. Quote, 'Yes, I will be appealing my convictions. Justice was not served. I had some wrongdoing but nothing that would warrant rape charges . . .

At this point, I don't believe [A.P.]'s memories are false memories. They are purposeful embellishments and exaggerations to mean an objective. She should enjoy her victory in this first trial if it allows her to finally seek the professional psychological help she truly needs.'

On advice of his counsel, Putman did not address the trial court because of an appeal pending at the time.

The record before the trial court included a letter written by Putman to the court prior to his first sentencing in 2020. Putman wrote:

I am not guilty of these crimes. . . . I thought wrongly that the jury had heard enough to realize my family had allowed the prosecutor to overcharge to take me out of their lives for as long as possible.

. . . .

I treated all my daughters and sons the same . . . but due to the one mistake I had made when she was six or seven years old, she questioned whether I truly loved her like the rest of my kids. And then she heard that I had threatened divorce and the breakup of our family and she decided to take revenge.

The record also included statements made by the family at the first sentencing hearing detailing Putman's behavior since his conviction. For example, A.P.'s brother stated "[t]o this day, [Putman] still attempts to portray [A.P.] as the villain, continuously blaming her for our family being broken."

The trial court summarized its reasoning behind its resentencing:

One of the things that's really, uh, troubling here is that both Mr. Putman from-and I realize he did not address me in person, but I have a-I have his words in a number of-of places in terms of his letter to the Court at the time of the original sentencing and his letters to his family. And what I'm really struck by here is a lack of accountability, a lack of responsibility. And I also have his words to the police at the time he made his confession. And while at that point he did not, uh, 100 percent agree with everything that his daughter was saying, in large part he did agree with a lot of the allegations. And it appears that since then rather than sort of taking further accountability, he's taking less and less accountability, and that's troublesome to me, and that suggests to me that, uh, he would be a danger to the [technical interruption]

. . . .

in large part he acknowledged that there had been multiple incidences of sexual contact, and he didn't, uh, completely agree with all of the aspects, but he did acknowledge a fairly extensive history. And since that time, uh, it appears that he's moved backwards rather than moving forward and is not accepting accountability.

. . . .

I do bear in mind, however, that Mr. Putman is aging and the danger he poses is likely to decline further as he ages . . . the crimes themselves I think build in, frankly, the horrific nature of the crime and the horrific impact that they have on victims. And-while I think-that Mr. Putman's ongoing denial and lack of accountability, it, uh, also plays a role here in my decision-making. I believe that these, uh, closer to the high end sentences are appropriate.

The trial court imposed concurrent determinate sentences of 260 months for the three counts of first degree rape of a child, and 180 months and 110 months for the child molestation convictions. The court also ordered Putman to pay a victim penalty assessment (VPA) and a DNA collection fee.

The trial court imposed 24 months of community custody with the following conditions relevant here:

STANDARD CONDITIONS

The Defendant shall comply with the following conditions of community custody, effective as of the date of sentencing unless otherwise ordered by the court.

6. Notify community corrections officer of any change in address or employment;

7. Upon request of the Department of Correction, notify the Department of court-ordered treatment . . .

SPECIAL CONDITIONS - SEX OFFENSES

Defendant shall:

1. Obey all municipal, county, state, tribal, and federal laws.

4. Within 30 days of release from confinement (or sentencing, if no confinement is ordered) obtain a sexual deviancy evaluation with a State certified therapist approved by your Community Corrections Officer (CCO) and follow all recommendations of the evaluator. If sexual deviancy treatment is recommended, enter treatment and abide by all programming rules, regulations and requirements. Attend all treatment-related appointments (unless excused); follow all requirements, conditions, and instructions related to the recommended evaluation/counseling; sign all necessary releases of information; and enter and complete the recommended programming.

5. Inform the supervising CCO and sexual deviancy treatment provider of any dating relationship. Disclose sex offender status prior to any sexual contact. Sexual contact in a relationship is prohibited until the treatment provider approves of such.

6. Obtain prior permission of the supervising CCO before changing work location.

7. If a resident at a specialized housing program, comply with all rules of that housing program.

8. Consent to DOC home visits to monitor compliance with supervision. Home visits include access for the purposes of visual inspection of all areas of the residence in which the offender lives or has exclusive /joint control/access.

10. Be available for and submit to urinalysis and/or breathanalysis upon request of the CCO and/or chemical dependency treatment provider.

12. Register as a Sex Offender with the sheriff['s] office in every county where you reside, attend school, or work, as required by law.

On December 19, 2022, Putman moved for reconsideration under CrR 7.8(b), arguing that the court used his silence against him during sentencing. Putman also argued that under CrR 7.8(b)(5) his behavior since being incarcerated-working hard and completing college level courses-is reason for reconsideration of the sentence. Putman asked the court to resentence him to concurrent sentences of 210 months for the three counts of first degree rape of a child, and 149 months and 87 months for the child molestation convictions.

Putman appealed the amended judgment and sentence before the trial court could rule on his motion for reconsideration.

II

A

At the outset Putman argues...