Opinion
No. 39381-6-II.
January 6, 2011. UNPUBLISHED OPINION
Appeal from a judgment of the Superior Court for Lewis County, No. 08-1-00223-8, Richard L. Brosey, J., entered May 8, 2009.
Affirmed in part and remanded by unpublished opinion per Van Deren, J., concurred in by Worswick, A.C.J., and Armstrong, J.
Michail Lee Draper appeals his convictions for attempting to elude and bail jumping and the trial court's imposition of an exceptional sentence. He argues that (1) the trial court erred when it failed to enter written findings of fact and conclusions of law (findings and conclusions) after his bench trial and in support of the exceptional sentence and (2) the trial court failed to identify a valid aggravating factor justifying the exceptional sentence. We affirm his conviction but reverse his exceptional sentence because the trial court failed to enter findings and conclusions identifying any aggravating factor justifying an exceptional sentence in this matter. We remand for sentencing within the standard range.
FACTS
Following a bench trial, the trial court convicted Draper of attempting to elude a police officer and bail jumping under cause number 08-1-00223-8. The trial court sentenced him on the convictions under this cause number, as well as two other cause numbers, Lewis County Superior Court cause number 08-1-00622-5 (Court of Appeals cause number 39361-1-II, opinion filed October 5, 2010) and Lewis County Superior Court cause number 08-1-00624-1 (Court of Appeals cause number 39371-9-II, which is the linked case in this matter) at the same sentencing hearing. The trial court sentenced Draper to 29 months' confinement on the attempting to elude offense and 60 months' confinement on the bail jumping offense and ordered these two sentences to run consecutive to each other but concurrent to his sentences on the other two cause numbers.
Draper appeals.
ANALYSIS
Draper contends that the trial court erred in failing to enter written findings and conclusions following his bench trial and also failed to enter such findings and conclusions to support the imposition of an exceptional sentence. Draper is partially correct.
I. Failure To Enter Written Findings of Fact and Conclusions of Law To Support the Guilty Verdict and the Exceptional Sentence
We granted the State's motion for an extension of time to file the findings and conclusions after the case was on appeal and Draper stated his issues. On September 8, 2010, the trial court filed findings and conclusions in this case finding Draper guilty following a bench trial. On September 9, 2010, the trial court filed findings and conclusions supporting an exceptional sentence in only the linked case, Lewis County Superior Court cause number 08-1-00624-1, Court of Appeals cause number 39371-9-II. Thus, we need not further address Draper's arguments regarding failure to enter findings and conclusions regarding the trial court's finding of guilt, as they are moot.
On June 10, 2010, we remanded to the superior court for entry of findings and conclusions and staying both this case and the linked case. We lifted the stay on September 29, 2010.
II. Failure To Identify Aggravating Factor Justifying the Exceptional Sentence
Draper also contends that the trial court failed to identify a valid aggravating factor to justify the exceptional sentence it imposed in Lewis County Superior Court cause number 08-1-00223-8. In doing so, he relies on the trial court's oral ruling that the basis for the exceptional sentence was "unpunished criminal history for the current crime in the overall scheme of things." Report of Proceedings (May 8, 2009) at 22. The State argues that the trial court's oral ruling justifies the imposition of the exceptional sentence in this case.
The trial court's imposition of consecutive sentences under this cause number was an exceptional sentence. RCW 9.94A.589(1)(a) states, "Consecutive sentences may only be imposed under the exceptional sentence provisions of RCW 9.94A.535." RCW 9.94A.535(2)(c) allows the trial court to impose an exceptional sentence without a finding of fact by a jury when "[t]he defendant has committed multiple current offenses and the defendant's high offender score results in some of the current offenses going unpunished."
This case was originally linked with the two other cases: Lewis County Superior Court cause numbers 08-1-00624-1, Court of Appeals cause number 39371-9-II, and 08-1-00622-5, Court of Appeals cause number 39361-1-II. The trial court imposed exceptional sentences in 08-1-00223-8 and in 08-1-00624-1. In 08-1-00624-1, the trial court imposed a 57 month sentence to run consecutively to the 156-month sentence in 08-1-00622-5, resulting in 213 months' confinement for the convictions in those two cases, which convictions and sentences we affirmed on appeal. State v. Draper, No. 39371-9-II (Wash. Ct. App. Jan. 6, 2011); State v. Draper, No. 39361-1-II, 2010 WL 3866707 (Wash. Ct. App. Oct. 5, 2010). We held that the trial court's unchallenged written findings in 08-1-00624-1 that Draper's multiple current offenses and high offender score would result in no additional penalty for some of the current offenses, thus leaving those crimes unpunished, were not clearly erroneous and provided a substantial and compelling reason for imposing an exceptional sentence for the convictions under RCW 9.94A.535(2)(c) in that case. State v. Draper, No. 39371-9-II (Wash. Ct. App. Jan. 6, 2011).
In this case, 08-1-00223-8, the trial court ordered Draper to serve 29 months on the elude conviction and 60 months on the bail jumping conviction, consecutive to each other but concurrent to the sentences on the other two cases. The sentences in the other two cases sentenced on the same day, 213 months, exceed the exceptional sentence imposed in this case. Under these circumstances, the trial court's oral statement that some of the current offenses would go unpunished unless it imposed an exceptional sentence was erroneous because the sum of Draper's sentences on the other two cases far exceeds both a possible standard range sentence and the exceptional sentence imposed under this cause number.
Because the trial court sentenced Draper on three separate cases on the same day, we found its oral ruling ambiguous regarding which current offenses were unpunished by imposition of a standard range sentence for the elude attempt and the bail jumping convictions. Thus, we remanded to the trial court to enter its specific findings and conclusions supporting the exceptional sentence it imposed. This, the trial court failed to do.
We allowed the parties 15 days to request additional briefing following the trial court's entry of its finding and conclusions supporting the exceptional sentence. Neither Draper nor the State filed additional briefing explaining why the trial court did not comply with our order to enter its findings and conclusions regarding the basis of the exceptional sentence in this case. Thus, we hold that the exceptional sentence must be reversed.
We affirm Draper's convictions and remand for resentencing on these convictions within the standard range.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
WORSWICK, A.C.J. and ARMSTRONG, JJ., concur.