State v. Friedlund

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Suprerne Court Clerk

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

STATE OF WASHINGTON, )
)
Respondent, ) No. 89926-6
) (consolidated with
v. ) No. 90005-1)
)
JOHN HERBERT FRIEDLUND, ) En Bane
)
Petitioner. )
) Filed JAN 1 5 2015
)
STATE OF WASHINGTON, )
)
Respondent, )
)
v. )
)
CASMER JOSEPH VOLK, )
)
Petitioner. )
)

WIGGINS, J.-We must determine whether an on-the-record oral ruling may

substitute for written findings when a trial court imposes an exceptional sentence-

that is, a sentence that is outside the standard sentence range for an offense. We

conclude that oral findings do not satisfy the requirements of the Sentencing Reform

Act of 1981 (SRA) and remand these matters to the trial court for entry of written

findings of fact and conclusions of law (hereinafter written findings). Ch. 9.94A RCW.
State v: Friedlund, No. 89926-6
Consolidated with
State v: Volk, No. 90005-1

This consolidated appeal consists of two criminal cases. In each case, the jury

convicted the defendant and found that aggravating circumstances were present. At

sentencing, the trial courts deviated from the standard sentencing range and imposed

exceptional sentences. While both trial courts explained on the record their reasons

for deviating from the standard range, neither court entered written findings as

required by statute. 1 See RCW 9.94A.535. Both sentences were affirmed by the Court

of Appeals in unpublished opinions. State v. Friedlund, noted at 178 Wn. App. 1039,

2014 WL 94322; State v. Vo/k, noted at 179 Wn. App. 2024,2014 WL465452.

The language of RCW 9.94A.535 is clear: "Whenever a sentence outside the

standard sentence range is imposed, the court shall set forth the reasons for its

decision in written findings of fact and conclusions of law." (Emphasis added.)

Because neither court entered written findings prior to appeal, we remand both cases

to the trial court for entry of written findings.

FACTS

I. State v. Friedlund

The State charged John Friedlund with first degree theft, alleging that he

misappropriated over $800,000 belonging to the victim, Frances Swan, by converting

the money to his own use. Swan was an old family friend of Friedlund. In 2001, after

her husband passed away, Swan requested that Friedlund move into her house and

1
The trial court in Friedlund did enter findings after we granted review. For the reasons explained
below, however, we vacate those findings because the trial court lacked authority to enter them
under RAP 7.2(e).

2
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

designated him as her primary attorney-in-fact. At the time Friedlund moved in, Swan

was 96 years old. Over the following decade, Friedlund gradually took control of

Swan's life and finances. In addition to misappropriating Swan's money, Friedlund

willfully neglected Swan herself. In 2011, 10 years after Friedlund moved into Swan's

house, law enforcement officers responded to a report that no one had seen Swan for

several months. Investigating officers found the house in a state of horrific disrepair

and observed that Swan (by then 106 years old) was on the brink of starvation.

The State charged Fried lund with first degree theft. The information alleged two

aggravating factors: (1) Friedlund had abused a position of trust to facilitate the crime

and (2) his victim had been particularly vulnerable or incapable of resistance. A jury

convicted Friedlund on the theft charge and found both aggravating circumstances

present. The trial court sentenced Friedlund to 120 months in prison, above the

standard sentence range of 3 to 9 months. The trial court explained the reasons for

imposing an exceptional sentence on the record at Friedlund's sentencing hearing.

But when the trial court entered its judgment and sentence, no written findings were

entered.

Friedlund appealed. The Court of Appeals affirmed, holding that because "[t]he

trial court's oral opinion clearly and sufficiently articulates the exceptional sentence

was imposed based on the jury's finding of the aggravating circumstances," the

absence of written findings was "harmless" and remanding for written findings would

3
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

be a "mere formality." Friedlund, 2014 WL 94322, at *3. We granted review on the

exceptional sentence only. 180 Wn.2d 1009, 325 P.3d 913 (2014).

II. State v. Vo/k

The State charged Casmer Volk with first degree rape of a child. The victim was

four years old, and Volk was a friend of the victim's family at the time of the offense.

As in Friedlund's case, the prosecution included an aggravating circumstance in the

information alleging that Volk knew or should have known that the victim was

particularly vulnerable or incapable of resistance. A jury convicted Volk and found the

aggravating circumstance present.

The trial court calculated the standard sentence range as 162 to 216 months.

The trial court then sentenced Volk to a term of 336 months to life, citing the

aggravating circumstance as the basis for sentencing Volk at least 120 months above

the standard range. 2 The trial court never entered written findings articulating the

reason for this exceptional sentence.

Volk appealed. The Court of Appeals affirmed, explaining that remand for entry

of written findings would be a "mere formality" because "the record is sufficiently

comprehensive and clear for us to discern the sentencing court imposed an

exceptional sentence solely because the jury found an aggravating circumstance by

2
First degree rape of a child is subject to the indeterminate sentencing provisions of RCW
9.94A.507. That statute requires trial courts to sentence offenders to a range of imprisonment
consisting of a maximum and a minimum term, with the maximum term set at the statutory
maximum for the offense and the minimum term "either within the standard sentence range for
the offense, or outside the standard sentence range pursuant to RCW 9.94A.535 .... " RCW
9.94A. 507 (3)(a)-( c)(i).

4
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

special interrogatory." Vo/k, 2014 WL 465452, at *8. We granted review. 180 Wn.2d

1013, 327 P.3d 54 (2014).

Ill. Motions To Supplement

After we granted review, the superior court in Friedlund belatedly entered

written findings and the State moved to supplement the appellate record with those

findings. The findings closely track, both in structure and content, the oral reasoning

that the superior court provided at Friedlund's sentencing hearing. We passed the

State's motion to be decided by the court after oral argument.

In Volk, the State moved the superior court to enter proposed written findings

after we granted review. Unlike in Friedlund, however, the superior court in Vo/k

declined to enter the State's proposed findings. Instead, the court ruled that while the

State's "proposed findings accurately reflect its sentencing of Mr. Volk," it would not

enter those findings "because the court does not find it has the authority per RAP 7.2."

The State's pending motion seeks to supplement the appellate record with the State's

proposed findings and the superior court's ruling declining to enter those findings. As

in Friedlund, we passed the motion to the merits.

Petitioners filed briefs opposing both pending motions to supplement.

ANALYSIS

We hold that an oral colloquy, even if on the record, cannot satisfy the SRA's

requirement that findings justifying an exceptional sentence must be in writing. We

5
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

deny the pending motions to supplement the appellate record in both cases and

remand both cases for entry of written findings.

I. Written Findings Requirement

We hold that the entry of written findings is essential when a court imposes an

exceptional sentence. Because the record does not contain written findings in either

of the pending cases, 3 we remand both Friedlund and Vo/k for the entry of written

findings. We review de novo whether a trial court's reasons for imposing an

exceptional sentence meet the requirements of the SRA. State v. Fowler, 145 Wn.2d

400, 406, 38 P.3d 335 (2002).

The SRA permits a court to impose sentences that deviate from the standard

sentence range "if it finds, considering the purpose of this chapter, that there are

substantial and compelling reasons justifying an exceptional sentence." RCW

9.94A.535. When a trial court imposes an exceptional sentence, the SRA requires the

court to "set forth the reasons for its decision in written findings of fact and conclusions

of law." /d. (emphasis added). This requirement, word for word, has been part of the

SRA from its inception. See LAWS OF 1981, ch. 137, § 12(3). The written findings must

then be sent to the Washington State Sentencing Guidelines Commission along with

the trial court's judgment and sentence. CrR 7.2(d) ("If the sentence imposed departs

3
The State's pending motion to supplement in Friedlund would, if granted, cure the absence of
written findings in the present record by supplementing the record with written findings that the
trial court entered after we granted review. For the reasons stated below, however, we deny the
motion to supplement and therefore must examine Fried/und on the present record. We also deny
the State's motion to supplement in Vo/k-although, as explained below, granting the State's
motion would not actually cure the absence of written findings in that case.

6
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

from the applicable standard sentence range, the court's written findings of fact and

conclusions of law shall also be supplied to the Commission.").

We hold that the SRA's written findings provision requires exactly that-written

findings. Permitting verbal reasoning-however comprehensive-to substitute for

written findings ignores the plain language of the statute. It would also deprive

defendants of the finality accorded by the inclusion of written findings in the court's

formal judgment and sentence. "A trial court's oral or memorandum opinion is no more

than an expression of its informal opinion at the time it is rendered. It has no final or

binding effect unless formally incorporated into the findings, conclusions, and

judgment." State v. Mallory, 69 Wn.2d 532, 533-34, 419 P.2d 324 (1966). A written

judgment and sentence, by contrast, is a final order subject to appeal. See State v.

Gallegos, 69 Wn.2d 586, 587-88,419 P.2d 326 (1966) (judgment and sentence "was

self-executing and was the final order in this case"). Our court rules reflect this

distinction: the superior court's authority to modify a judgment is limited by CrR 7.8

and, if a party appeals, RAP 7.2(e); a trial court's oral rulings are not subject to the

same limitations.

Allowing courts to ignore the written findings requirement would also run

contrary to the SRA's explicit statutory purpose of "mak[ing] the criminal justice system

accountable to the public." RCW 9.94A.01 0. Without written findings, the Sentencing

Guidelines Commission and the public at large could not readily determine the

7
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

reasons behind exceptional sentences, greatly hampering the public accountability

that the SRA requires.

Here, the records of both pending cases are devoid of written findings. The

remedy for a trial court's failure to enter written findings of fact and conclusions of law

is to remand the case for entry of those findings and conclusions. In re Pers. Restraint

of Breedlove, 138 Wn.2d 298, 311, 979 P.2d 417 (1999). We remand both cases for

that purpose.

II. Motions To Supplement the Appellate Record

We deny both pending motions to supplement. In Friedlund's case, the trial

court entered written findings and fact of conclusions of law several months after we

accepted review. We conclude that the trial court lacked authority to enter its findings

under RAP 7.2(e).

As noted above, CrR 7.8 and RAP 7.2(e) limit the superior court's authority to

modify a criminal judgment. RAP 7.2(e) explicitly requires the superior court to obtain

permission from the appellate court before making any determination that would

"change a decision then being reviewed by the appellate court." Here, the decision we

are reviewing is the trial court's judgment and sentence imposing an exceptional

sentence on Friedlund. That judgment and sentence explicitly incorporates the written

findings supporting the exceptional sentence. Consequently, the trial court's belated

entry of written findings alters the decision under review. Because the trial court failed

to obtain our permission prior to entering its written findings, entering the findings

violated RAP 7 .2( e).

8
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

A contrary holding would deprive Friedlund of his right to appeal. RCW

9.94A.585(2) gives defendants the right to appeal any exceptional sentence to the

Court of Appeals. Because the parties completed their Court of Appeals briefing before

the trial court entered its findings, Friedlund had no opportunity to appeal the written

findings undergirding his exceptional sentence. It would be unfair to address the

merits of the trial court's written findings when Friedlund has had no opportunity to

appeal them.

Because the trial court did not seek permission from this court prior to entering

its written findings-the absence of which lies at the core of Friedlund's appeal-it

lacked authority to enter those findings. Consequently, we deny the State's motion to

supplement the Friedlund record with the trial court's belatedly entered findings. 4

We deny the motion to supplement in Volk as well. The superior court in Volk

correctly recognized that it lacked authority to enter findings under RAP 7.2(e) and

therefore refused to enter the written findings that the State proposed. Moreover,

because the trial court never entered the State's proposed findings, adding them to

the present appellate record would add nothing of relevance to the record.

4
The adequacy of the superior court's belatedly entered written findings is the subject of a
separate appeal, State v. Friedlund, No. 32640-3-111 (Wash. Ct. App.), currently stayed pending
the outcome of this case. Vacation of the existing findings of fact will presumably moot that appeal,
but we leave to the appellate court how best to resolve the matter.

9
State v. Friedlund, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

CONCLUSION

For the reasons stated above, we reverse the Court of Appeals' conclusion in

each case that oral reasoning may substitute for written findings of fact and

conclusions of law. 5 We deny the State's pending motions to supplement, vacate the

trial court's belatedly entered findings in Friedlund, and remand both cases for entry

of written findings of fact and conclusions of law. In Friedlund, the trial court may

reenter the same findings or enter a different set of findings.

5
Before the Court of Appeals, both Friedlund and Volk asserted ineffective assistance of counsel
and Volk challenged the sufficiency of the evidence, the trial court's child hearsay decision, and
the legality of Volk's community custody conditions. We denied review of Friedlund's ineffective
assistance of counsel claim, and Volk did not seek review on any of the above-listed issues.

10
State v. Fried/und, No. 89926-6
Consolidated with
State v. Volk, No. 90005-1

WE CONCUR.

11