Facts: Respondent Randy Sutherby was convicted of child rape, child molestation, and seven counts of possession of child pornography in the Superior Court for Grays Harbor County after allegations of sexual assault by his granddaughter led police to search Sutherby’s personal computer and discover child pornography. Sutherby subsequently appealed his conviction, asserting that he should have been charged with one count of possession of child pornography rather than seven and that his attorney’s failure to move for severance of the child pornography charges had constituted ineffective assistance of counsel. The Washington Court of Appeals vacated Sutherby’s convictions for child rape and child molestation and remanded the case to the trial court for retrial on those charges and for resentencing on a single count rather than seven counts of possession of child pornography. The state of Washington appealed this decision to the Supreme Court of Washington.

Question(s): Should Sutherby have been charged with one count of possession of child pornography or seven counts of possession of child pornography under Washington Revised Code §9.68A.070?
Did Sutherby receive ineffective assistance of counsel when his attorney failed to move to sever the possession of child pornography charges from the child rape and child molestation charges?

Conclusion: Justice Stephens’ opinion for the Court affirmed the Washington Court of Appeals, concluding that the possession of any amount of child pornography is a single offense under §9.68A.070 and that the contents of Sutherby’s personal computer should therefore have given rise to a single charge of possession of child pornography. The Court also held that the failure of Sutherby’s attorney to move to sever the child pornography charges from the child rape and child molestation charges constituted ineffective assistance of counsel as there was a reasonable probability that such a motion would have been granted and would have resulted in a different outcome with regard to the child rape and child molestation charges.

Docket No. 80169-0 (from Court of Appeals Division I Case No. 58004-3)

Petitioner: State of Washington

Respondent: Randy J. Sutherby

Other Parties: State (petitioner) v. Sutherby (respondent)

Briefs:

Argument: Thursday, June 12, 2008 9:00am

[Source: TVW, http://tvw.org]

Decided: Thursday, April 9th, 2009

Prevailing Party: Randy J. Sutherby (Respondent)

Vote: 7-2

Citation: Pending

Alexander

Johnson

Madsen

Sanders

Chambers

Owens

Fairhurst
(Dissent)

Johnson
(Dissent)

Stephens
(Majority)