State v. Barberio

Defendant was convicted of second degree rape and third degree rape. The trial court imposed exceptional sentences of 72 months and 28 months respectively. Defendant did not challenge the exceptional sentences on appeal. In an unpublished opinion, the Court of Appeals reversed the third degree rape conviction and affirmed the second degree rape conviction. State v. Barberio, noted at 57 Wn. App. 1070, review denied, 115 Wn.2d 1010 (1990).

On remand the State elected not to retry the third degree rape charge. At resentencing defendant challenged the aggravating factors found by the court in the…